Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost to the Agent, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3. (b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverage), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction. (c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter. (d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error. (e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim. (f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 6 contracts
Samples: Loan and Servicing Agreement (Blue Owl Capital Corp III), Loan and Servicing Agreement (Blue Owl Capital Corp III), Loan and Servicing Agreement (Blue Owl Capital Corp III)
Increased Costs Capital Adequacy. (a) If, due to either (i) If after the introduction date of this Agreement the adoption of or any change following the date hereof (including, without limitation, in any change by way of imposition law or increase of reserve requirements) in regulation or in the interpretation, administration interpretation or application arising following the date hereof of thereof by any Applicable Law, in each case whether foreign Governmental Authority or domestic application thereof or (ii) the compliance by any Bank with any guideline request or request following the date hereof from any central bank or other Official Body directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date of this Agreement:
(i) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Bank that is not otherwise included in the determination of the LIBOR Rate hereunder (except for amounts covered by Section 3.4 or any other Section hereof); or
(ii) shall impose on such Bank any other condition; and the result of any of the foregoing is to increase the actual cost to such Bank, by an amount that such Bank deems to be material, of making, converting into, continuing or maintaining LIBOR Rate Loans or issuing or participating in Letters of Credit or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay such Bank, upon its demand in the manner set forth in Section 4.8(b), any additional amounts, computed by such Bank in accordance with Section 4.8(a), necessary to compensate such Bank for such actual increased cost or reduced amount receivable that is attributable to Loans or Commitments (Ato the extent that such Bank has not already been compensated or reimbursed for such amounts pursuant to any other provision of this Agreement). If any Bank becomes entitled to claim any additional amounts pursuant to this Section 4.1(a) there from the Borrower, it shall be any increase promptly notify the Borrower, through the Administrative Agent, of the event by reason of which it has become so entitled in the cost to manner set forth in Section 4.8(b).
(b) If any Bank determines in good faith that the Agent, any Lender Agent, any Lender, successor or assign thereof (each introduction of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan (or any reduction of change in or in the amount interpretation or application by any Governmental Authority of any payment law or regulation regarding capital adequacy after the date of this Agreement or compliance by such Bank or any corporation controlling such Bank with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of principal, interest, fee, compensation law) made or otherwise) to any Affected Person hereunder)issued after the date of this Agreement does or shall have the effect, as the case may be, (B) there shall be any reduction in the amount a result of any sum received or receivable by an Affected Person such Bank’s obligations under this Agreement or under any other Transaction DocumentLetter of Credit, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the such Bank’s or such corporation’s capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Bank or such corporation could have achieved but for such introduction, change or compliance (taking into consideration the such Bank’s or such corporation’s policies of such Affected Person with respect to capital adequacy and liquidity coverage), adequacy) by an amount deemed by such Affected Person Bank to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, Administrative Agent for the benefit account of such Affected PersonBank, from time to time as specified by such amount as will, Bank in the determination manner set forth in Section 4.8(b), additional amounts, computed by such Bank in accordance with Section 4.8(a), sufficient to compensate such Bank or such corporation in the light of such Affected Personcircumstances, compensate to the extent that such Affected Person therefor. A certificate Bank reasonably determines such reduction in rate of return is allocable to the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under existence of such Bank’s obligations hereunder.
(c) The agreements contained in this Section 5.1(c) 4.1 shall be delivered to survive the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes termination of this Section 5.1(c), regardless Agreement and the payment of the date enacted, adopted, issued or implementedall amounts payable hereunder; provided, however, that in no event shall the Borrower shall not be responsible obligated to reimburse or compensate any Bank for amounts contemplated by this Section 4.1 for any increased costs relating period prior to the Retention Requirements so long as the Retention Holder date that is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 90 days prior to the date that upon which such Affected Person notifies the Borrower of the event that gives rise to Bank requests in writing such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges reimbursement or compensation on other borrowers similarly situated to from the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)Borrower.
Appears in 5 contracts
Samples: Credit Agreement (Centerpoint Energy Inc), Credit Agreement (Centerpoint Energy Houston Electric LLC), Credit Agreement (Centerpoint Energy Houston Electric LLC)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable LawLaw (including, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost to the Agentwithout limitation, any Lender Agent, any Lender, successor law or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by regulation that subjects an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject Party to any Taxes (other than (1) Indemnified Excluded Taxes and (2) Excluded TaxesTaxes imposed on payments under this Agreement) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then), in each casecase whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to the Administrative Agent, any Lender, any Lender Agent, any Liquidity Bank or any Affiliate, successor or assign thereof (each of which shall be an “Affected Party”) of agreeing to make or making, funding or maintaining any Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Party hereunder), as the case may be, or there shall be any reduction in the amount of any sum received or receivable by an Affected Party under this Agreement, under any other Transaction Document or any Liquidity Agreement, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Administrative Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 2.09 shall be without duplication of amounts payable under Section 4.32.10; provided, further, that an Affected Party claiming additional amounts under this Section 2.09 agrees to use commercially reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate a different lending office if the making of such a designation would avoid the need for, or reduce the amount of, such increased cost that may thereafter accrue and would not, in the reasonable judgment of such Affected Party, be otherwise disadvantageous to such Affected Party.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Administrative Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction.
(c) If an as a result of any event or circumstance similar to those described in clause (a) or (b) of this Section 2.09, any Affected Person shall at any time (without regard Party is required to whether any Basel III Regulations compensate a bank or Xxxx-Xxxxx Regulations are then in effect) suffer other financial institution providing liquidity support, credit enhancement or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding other similar support to such Affected Person or any of its Affiliates is required or expected to maintain Party in connection with this Agreement or the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment funding or maintenance of a reserve of stable fundingAdvances hereunder, a reduction in the amount of any sum received or receivable then within ten days after demand by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the AgentParty, the Borrower shall pay to the Agent, for the benefit of such Affected Person, Party such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the additional amount or amounts as may be necessary to compensate the reimburse such Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible Party for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letteramounts payable or paid by it.
(d) In determining any amount provided for in this Section 5.12.09, the Affected Person Party may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.09, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect Failure or delay on the part of any Affected Party to any claim for demand compensation under pursuant to this Section 5.1 2.09 shall not constitute a waiver of such Affected Party’s right to demand or receive such compensation; provided, however, that the Borrower shall not be required to compensate such Affected Person responsible for any amount incurred costs under this Section 2.09 arising more than 180 90 days prior to the date that such Affected Person notifies receipt by the Borrower of the event that gives rise to such claim.
(f) An demand from the Affected Person shall not be entitled to any compensation Party pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)2.09.
Appears in 4 contracts
Samples: Loan and Servicing Agreement (FS Investment Corp II), Loan and Security Agreement (FS Investment Corp III), Loan and Servicing Agreement (FS Energy & Power Fund)
Increased Costs Capital Adequacy. (a) If, due to either (i) after the introduction date of this Agreement, the adoption of or any change following the date hereof (including, without limitation, in any change by way of imposition law or increase of reserve requirements) in regulation or in the interpretation, administration interpretation or application arising following the date hereof of thereof by any Applicable Law, in each case whether foreign Governmental Authority or domestic or (ii) the compliance by any Bank with any guideline request or request following the date hereof from any central bank or other Official Body directive (whether or not having the force of law)) from any central bank or other Governmental Authority made subsequent to the date of this Agreement (provided that the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, Basel III and all requests, rules, guidelines or directives under, or issued in connection with, the foregoing shall be deemed for all purposes of this Section 4.1 to be a change in Requirements of Law, regardless of the date enacted, adopted or issued):
(i) shall (A) there shall be subject any increase in the cost Bank or Issuing Bank to the Agentany Taxes with respect to this Agreement, any Lender Agent, any Lender, successor or assign thereof (each Letter of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan (Credit or any reduction of the amount of any payment (whether of principalApplication made by it, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there change the basis of taxation of payments to such Bank or Issuing Bank in respect thereof (except, in each case of (A) and (B), for Indemnified Taxes, Connection Income Taxes and Taxes described in clauses (ii) through (v) of the definition of Excluded Taxes);
(ii) shall be impose, modify or hold applicable any reduction reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Bank that is not otherwise included in the amount determination of the applicable Term SOFR rate hereunder (except for amounts covered by any other Section hereof); or
(iii) shall impose on such Bank any other condition; and the result of any sum received or receivable of the foregoing is to increase the actual cost to such Bank, by an Affected Person amount that such Bank deems to be material, of making, converting into, continuing or maintaining SOFR Loans or issuing or participating in Letters of Credit or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay such Bank, upon its demand in the manner set forth in Section 4.8(b), any additional amounts, computed by such Bank in accordance with Section 4.8(a), necessary to compensate such Bank for such actual increased cost or reduced amount receivable that is attributable to Loans or Commitments (to the extent that such Bank has not already been compensated or reimbursed for such amounts pursuant to any other provision of this Agreement). If any Bank becomes entitled to claim any additional amounts pursuant to this Section 4.1(a) from the Borrower, it shall promptly notify the Borrower, through the Administrative Agent, of the event by reason of which it has become so entitled in the manner set forth in Section 4.8(b).
(b) If any Bank determines in good faith that the introduction of or any change in or in the interpretation or application by any Governmental Authority of any law or regulation regarding capital adequacy or liquidity after the date of this Agreement or compliance by such Bank or any corporation controlling such Bank with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) made or issued after the date of this Agreement does or shall have the effect, as a result of such Bank’s obligations under this Agreement or under any other Transaction DocumentLetter of Credit, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the such Bank’s or such corporation’s capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Bank or such corporation could have achieved but for such introduction, change or compliance (taking into consideration the such Bank’s or such corporation’s policies of such Affected Person with respect to capital adequacy and liquidity coverage), or liquidity) by an amount deemed by such Affected Person Bank to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, Administrative Agent for the benefit account of such Affected PersonBank, from time to time as specified by such amount as will, Bank in the determination manner set forth in Section 4.8(b), additional amounts, computed by such Bank in accordance with Section 4.8(a), sufficient to compensate such Bank or such corporation in the light of such Affected Personcircumstances, compensate to the extent that such Affected Person therefor. A certificate Bank reasonably determines such reduction in rate of return is allocable to the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under existence of such Bank’s obligations hereunder.
(c) The agreements contained in this Section 5.1(c) 4.1 shall be delivered to survive the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes termination of this Section 5.1(c), regardless Agreement and the payment of the date enacted, adopted, issued or implementedall amounts payable hereunder; provided, however, that in no event shall the Borrower shall not be responsible obligated to reimburse or compensate any Bank for amounts contemplated by this Section 4.1 for any increased costs relating period prior to the Retention Requirements so long as the Retention Holder date that is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 90 days prior to the date upon which such Bank requests in writing such reimbursement or compensation from the Borrower; provided that, to the extent that such Affected Person notifies the Borrower adoption of or any change in any law or regulation or in the event that interpretation or application thereof gives rise to such claim.
(fany amount(s) An Affected Person shall not be entitled to any compensation pursuant to contemplated by this Section 5.1 4.1 on a retroactive basis, then the 90-day period referred to in the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated preceding proviso shall be extended to include the Borrower hereunder under comparable credit facilities (it being understood that the amount period of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)retroactive effect thereof.
Appears in 4 contracts
Samples: Credit Agreement (Centerpoint Energy Resources Corp), Credit Agreement (Centerpoint Energy Resources Corp), Credit Agreement (Centerpoint Energy Resources Corp)
Increased Costs Capital Adequacy. (a) If, due to either If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the introduction of account of, or any change following the date hereof (including, without limitationcredit extended or participated in by, any change by way of imposition or increase of Lender (except any reserve requirements) in or requirement reflected in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or Eurodollar Rate);
(ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost to the Agent, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) subject any Recipient is subject to any Taxes (other than (1A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (2C) Excluded Connection Income Taxes) on its loansLoans, loan Loan principal, letters of credit, commitments, Commitments or other obligationsObligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender; and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan, or to increase the cost to such Lender or such other Recipient of participating in, issuing or maintaining any such Loan, or to reduce the amount of any sum received or receivable by such Lender or other Recipient hereunder (whether of principal, interest or any other amount) then, in each caseupon the request of such Lender or other Recipient, the Borrower shallwill promptly pay to such Lender or other Recipient, from time to timeas the case may be, after written demand by such additional amount or amounts as will compensate such Lender or other Recipient, as the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis case may be, for such demand), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs incurred or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3reduction suffered.
(b) If either (i) the introduction of any Lender determines that any Change in Law affecting such Lender or any change following the date hereof in lending office of such Lender or in the interpretationsuch Lender’s holding company, administration or application arising following the date hereof of any lawif any, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coveragerequirements, has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of any Affected Personsuch Lender’s holding company, if any, as a consequence of its obligations hereunder this Agreement, the Commitments of such Lender or any related document or arising in connection herewith or therewith the Loans made by such Lender to a level below that which any such Affected Person Lender or such Lender’s holding company could have achieved but for such introduction, change or compliance Change in Law (taking into consideration such Lender’s policies and the policies of such Affected Person Lender’s holding company with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person to be material, then, then from time to time, time after demand submission by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), Lender to the Borrower shall (with a copy to the Disbursing Agent) of a written request therefor the Borrower will pay the Agent on behalf of to such Affected Person Lender such additional amount or amounts as will compensate such Affected Person Lender or such Lender’s holding company for any such reductionreduction suffered on an after-tax basis.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the Affected Person under this case may be, as specified in Section 5.1(c2.15(a) shall be or Section 2.15(b) and delivered to the Borrower and (with a copy to the Disbursing Agent), shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the The Borrower shall not be responsible for pay such Lender the amount shown as due on any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Lettersuch certificate within 10 days after receipt thereof.
(d) In determining Failure or delay on the part of any amount provided for in Lender to demand compensation pursuant to this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making 2.15 shall not constitute a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations waiver of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect Lender’s right to any claim for compensation under this Section 5.1 demand such compensation; provided that the Borrower shall not be required to compensate such Affected Person a Lender pursuant to this Section 2.15 for any amount increased costs incurred or reductions suffered more than 180 days nine months prior to the date that such Affected Person Lender notifies the Borrower of the event that gives Change in Law giving rise to such claimincreased costs or reductions, and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).
(fe) An Affected Person shall not be entitled to any compensation The obligations of the Borrower pursuant to this Section 5.1 to 2.15 shall survive the extent such Affected Person is not imposing such charges or compensation on termination of this Agreement and the payment of the Loans and all other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)amounts payable hereunder.
Appears in 4 contracts
Samples: Credit Agreement (Pacific Investment Management Co LLC), Credit Agreement (Pacific Investment Management Co LLC), Credit Agreement (FreightCar America, Inc.)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change that becomes effective following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable LawLaw (including, without limitation, any law or regulation resulting in any interest payments paid to any Lender under this Agreement being subject to any Tax, except for Taxes on the overall net income of such Lender), in each case whether foreign or domestic domestic, including under Basel III or Xxxx-Xxxxx, or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) including under Basel III or Xxxx-Xxxxx, there shall be any increase in the cost to the Administrative Agent, any Lender, any Lender Agent, any LenderLiquidity Bank or any Affiliate, participant, successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) or there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or Agreement, under any other Transaction Document, Document or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each caseLiquidity Agreement, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Administrative Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) 10 days after such demand; provided, provided that the amounts payable under this Section 5.1 2.10 shall be without duplication of amounts payable under Section 4.32.11 and shall not include any Excluded Taxes.
(b) If either (i) the introduction of or any change that becomes effective following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageliquidity, including under Basel III or Xxxx-Xxxxx, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageor liquidity), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Administrative Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction. For the avoidance of doubt, any increase in cost or reduction in Yield with respect to any Affected Party caused by regulatory capital allocation adjustments due to FAS 166, 167 and subsequent statements and interpretations shall constitute a circumstance on which such Affected Party may base a claim for reimbursement under this Section 2.10.
(c) If an Affected Person shall at as a result of any time event or circumstance similar to those described in clause (without regard to whether any Basel III Regulations a) or Xxxx-Xxxxx Regulations are then in effect(b) suffer or incur of this Section 2.10, (i) any explicit Affected Party is required to compensate a bank or implicit chargeother financial institution providing liquidity support, assessment, cost credit enhancement or expense by reason of the amount or type of assets, capital or supply of funding other similar support to such Affected Person or any of its Affiliates is required or expected to maintain Party in connection with this Agreement or the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment funding or maintenance of a reserve of stable fundingAdvances hereunder, a reduction in the amount of any sum received or receivable then within ten days after demand by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the AgentParty, the Borrower shall pay to the Agent, for the benefit of such Affected Person, Party such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the additional amount or amounts as may be necessary to compensate reimburse such Affected Party for any amounts payable or paid by it, or (ii) the Affected Person under this Section 5.1(cAdministrative Agent (whether in its own judgment or at the request of the Majority Lenders) deems it necessary or appropriate to obtain a credit rating on the Revolving Notes, the Borrower shall be delivered (x) provide (as promptly as possible and in any event no later than 60 days following receipt by the Borrower of such reasonable request) at least one Rating Agency designated by the Administrative Agent with all information and documents reasonably requested by such Rating Agency (to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything extent such information or documents are in the possession of or reasonably available to the contrary contained hereinBorrower) and otherwise cooperate with such Rating Agency’s review of the Transaction Documents and transactions contemplated hereby, all requestsand (y) pay the costs and expenses of such Rating Agency in respect of the rating of the Revolving Notes.
(d) For avoidance of doubt, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption interpretation of any law, rule or regulation for purposes clause (a) and (b) of this Section 5.1(c)2.10, regardless of any regulatory changes, rules, guidelines or directives under or issued in connection with Basel III or Xxxx-Xxxxx will be considered as a “change” hereunder, and will not be treated as having been adopted or having come into effect before the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letterhereof.
(de) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect ; provided that no Lender shall be requested to disclose confidential or price sensitive information or any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior other information, to the date that such Affected Person notifies the Borrower of the event that gives rise to such claimextent prohibited by Applicable Law.
(f) An Failure or delay on the part of any Affected Person shall not be entitled Party to any demand compensation pursuant to this Section 5.1 to the extent 2.10 shall not constitute a waiver of such Affected Person is not imposing Party’s right to demand or receive such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)compensation.
Appears in 4 contracts
Samples: Loan and Servicing Agreement (SLR Investment Corp.), Loan and Servicing Agreement (SLR Investment Corp.), Ninth Amendment to the Loan and Servicing Agreement (SLR Senior Investment Corp.)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof Restatement Date (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof Restatement Date of any Applicable LawLaw (including, without limitation, any law or regulation resulting in any interest payments paid to the Note Purchaser under this Agreement being subject to any Tax, except for Taxes on the overall net income of the Note Purchaser), in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof Restatement Date from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) there shall be any increase in the cost to the Agent, the Note Purchaser, or any Lender Agent, any LenderAffiliate, successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) 10 days after such demand; provided, that the amounts payable under this Section 5.1 2.10 shall be without duplication of amounts payable under Section 4.32.11 and shall not include any Excluded Taxes.
(b) If either (i) the introduction of or any change following the date hereof Restatement Date in or in the interpretation, administration or application arising following the date hereof Restatement Date of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereofRestatement Date, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 4 contracts
Samples: Sale and Servicing Agreement (Ares Capital Corp), Sale and Servicing Agreement (Ares Capital Corp), Sale and Servicing Agreement (Ares Capital Corp)
Increased Costs Capital Adequacy. (a) If, due to either (i) If after the introduction date of this Agreement the adoption of or any change following the date hereof (including, without limitation, in any change by way of imposition law or increase of reserve requirements) in regulation or in the interpretation, administration interpretation or application arising following the date hereof of thereof by any Applicable Law, in each case whether foreign Governmental Authority or domestic application thereof or (ii) the compliance by any Bank with any guideline request or request following the date hereof from any central bank or other Official Body directive (whether or not having the force of law)) from any central bank or other Governmental Authority made subsequent to the date of this Agreement:
(i) shall impose, (A) there shall be modify or hold applicable any increase reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Bank that is not otherwise included in the cost to determination of the LIBOR Rate hereunder (except for amounts covered by Section 3.4 or any other Section hereof); or
(ii) shall impose on such Bank any other condition;
(a) from the Borrower, it shall promptly notify the Borrower, through the Administrative Agent, any Lender Agent, any Lender, successor or assign thereof (each of the event by reason of which shall be an “Affected Person”it has become so entitled in the manner set forth in Section 4.8(b).
(b) If any Bank determines in good faith that the introduction of agreeing to make or making, funding or maintaining any Loan (or any reduction of change in or in the amount interpretation or application by any Governmental Authority of any payment law or regulation regarding capital adequacy after the date of this Agreement or compliance by such Bank or any corporation controlling such Bank with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of principal, interest, fee, compensation law) made or otherwise) to any Affected Person hereunder)issued after the date of this Agreement does or shall have the effect, as the case may be, (B) there shall be any reduction in the amount a result of any sum received or receivable by an Affected Person such Bank's obligations under this Agreement or under any other Transaction DocumentLetter of Credit, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the such Bank's or such corporation's capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Bank or such corporation could have achieved but for such introduction, change or compliance (taking into consideration the such Bank's or such corporation's policies of such Affected Person with respect to capital adequacy and liquidity coverage), adequacy) by an amount deemed by such Affected Person Bank to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, Administrative Agent for the benefit account of such Affected PersonBank, from time to time as specified by such amount as will, Bank in the determination manner set forth in Section 4.8(b), additional amounts, computed by such Bank in accordance with Section 4.8(a), sufficient to compensate such Bank or such corporation in the light of such Affected Personcircumstances, compensate to the extent that such Affected Person therefor. A certificate Bank reasonably determines such reduction in rate of return is allocable to the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under existence of such Bank's obligations hereunder.
(c) The agreements contained in this Section 5.1(c) 4.1 shall be delivered to survive the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes termination of this Section 5.1(c), regardless Agreement and the payment of the date enacted, adopted, issued or implementedall amounts payable hereunder; provided, however, that in no event shall the Borrower shall not be responsible obligated to reimburse or compensate any Bank for amounts contemplated by this Section 4.1 for any increased costs relating period prior to the Retention Requirements so long as the Retention Holder date that is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 90 days prior to the date that upon which such Affected Person notifies the Borrower of the event that gives rise to Bank requests in writing such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges reimbursement or compensation on other borrowers similarly situated to from the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)Borrower.
Appears in 4 contracts
Samples: Credit Agreement (Centerpoint Energy Houston Electric LLC), Credit Agreement (Centerpoint Energy Houston Electric LLC), Credit Agreement (Centerpoint Energy Houston Electric LLC)
Increased Costs Capital Adequacy. (a) IfSubject to the provisions of Section 4.4(e) below, due Borrower shall promptly pay directly to either each Lender such amounts as are reasonably necessary to compensate such Lender for any increase in costs which are attributable to such Lender’s making, maintaining or continuing of its Commitment or the loans evidenced by its Equipment Notes or funding arrangements utilized in connection with such loans (iincluding any hedging arrangement relating to any Fixed Rate), or any reduction in any amount receivable by such Lender hereunder in respect of its Commitment or under the Equipment Notes, such loans or such arrangements (such increases in costs and reductions in amounts receivable being herein called “Additional Costs”), applicable to the period commencing thirty (30) days prior to Lender’s notification thereof pursuant to Section 4.4(c) and resulting from the introduction adoption of or any change following after the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in Law or in the interpretation, administration interpretation or application arising following the date hereof of thereof or compliance by any Applicable Law, in each case whether foreign or domestic or (ii) the compliance Lender with any guideline request or request following the date hereof from any central bank or other Official Body directive (whether or not having the force of law)Law but, (Aif not having the force of Law, is generally applied by Lender with respect to similar credits under similar circumstances) there shall be from any increase in the cost central bank or other Governmental Entity made subsequent to the Agentdate hereof that:
(1) shall impose any tax that is the functional equivalent of any reserve, special deposit or similar requirements of the sort covered by clause (2) below; or
(2) shall impose or modify any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of advances, loans or other extensions of credit by, or any other acquisition of funds by, any Lender Agent, office of such Lender; or
(3) imposes any Lender, successor other condition affecting this Agreement or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan its Equipment Notes (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Agent, on behalf extensions of credit or liabilities) or any such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3obligation.
(b) If either (i) Without duplication of any amounts payable by Borrower under Section 4.4(a), if any Lender shall have determined, acting reasonably and in good faith, that after the introduction date hereof, the adoption of or any change following the date hereof in any Law regarding capital adequacy or in the interpretation, administration interpretation or application arising following the date hereof of any lawthereof, guideline, rule or regulation, directive or request or (ii) the compliance by such Lender or any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person corporation controlling such Lender with any request or directive regarding capital adequacy (whether or liquidity coveragenot having the force of Law but, has or would if not having the force of law, is generally applied by such Lender with respect to similar credits under similar circumstances) from any Governmental Entity made subsequent to the date hereof, shall have the effect of reducing the rate of return on the such Lender’s or such corporation’s capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Lender or such corporation could have achieved but for such introductionadoption, change or compliance (taking into consideration the such Lender’s or such corporation’s policies of such Affected Person with respect to capital adequacy and liquidity coverage), adequacy) by an amount deemed by such Affected Person Lender to be materialmaterial acting reasonably and in good faith, then, then from time to time, after demand submission by such Affected Person Lender to Borrower (which demand with a copy to Security Agent) of a written request therefor, Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such corporation for such reduction attributable to the period commencing thirty (30) days prior to Lender’s notification thereof pursuant to Section 4.4(c).
(c) Each Lender will furnish to Borrower (with a copy to Security Agent) an Officer’s Certificate setting forth in reasonable detail (i) the events giving rise to the request by such Lender for compensation under subsection (a) or (b) of this Section 4.4, (ii) the basis for determining such compensation and (iii) the amount of each request by such Lender for compensation under subsection (a) or (b) of this Section 4.4, together with a statement that the determinations made in respect of the such compensation comply with the provisions of this Section 4.4 and that none of the exceptions set forth in Section 4.4(d) apply with respect to such compensation. Determinations set forth in such Officer’s Certificate shall be accompanied presumed correct, absent manifest error.
(d) Borrower shall not be required to make payments under this Section 4.4 to any Lender if (i) a claim hereunder arises through circumstances peculiar to such Lender and which do not affect commercial banks in the same jurisdiction generally, or (ii) the claim arises out of a relocation by such Lender of its lending office (except any such relocation effected pursuant to Section 4.4(e)), or (iii) if a statement comparably situated borrower is being treated more favorably by such Lender (as reasonably determined by such Lender) in respect of a claim made hereunder.
(e) Each Lender will, if requested by Borrower, to the extent not inconsistent with any applicable legal or regulatory restrictions and subject to the overall policy considerations of such Lender, use commercially reasonable efforts to designate a different lending office for the Equipment Notes of such Lender affected by such event or, failing that, to take other reasonable measures requested by Borrower (including transferring such Equipment Notes pursuant to Section 7.1(d) hereof) to mitigate the amount of payment of Additional Costs or other amounts under this Section 4.4, if as a result thereof the additional amounts that would otherwise be required to be paid to such Lender pursuant to this Section 4.4 would be reduced or eliminated and if the making, funding or maintaining of its interest in the Equipment Notes through such other lending office or the taking of such other reasonable measures would not, in the good faith judgment of such Lender, result in any economic, legal or regulatory disadvantage (other than de minimis disadvantages) or adverse tax consequences to such Lender (other than adverse tax consequences for which Borrower agrees to indemnify such Lender); provided, that such Lender will not be obligated to utilize such other lending office pursuant to this Section 4.4 unless Borrower agrees to pay all incremental out-of-pocket expenses, if any, reasonably incurred by such Lender as a result of utilizing such other lending office as described above; provided, further, that such Lender shall have no obligation to designate another lending office that does not maintain loans comparable to the loan evidenced by such Lender’s Equipment Note. An Officer’s Certificate as to the amount of any such expenses (setting forth in reasonable detail the basis for requesting such demand), amount and the calculation thereof) submitted by such Lender to Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit chargebe presumed correct, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything If after using commercially reasonably efforts as aforesaid such Lender is not able to mitigate the amount of or the need for the Additional Costs to the contrary contained hereinreasonable satisfaction of Borrower within thirty (30) days of such Lender’s notice described in Section 4.4(c) hereof, all requests, rules, guidelines, requirements and directives promulgated Borrower may prepay in connection accordance with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless 2.10 of the date enacted, adopted, issued or implemented; provided, however, that Mortgage the Borrower shall not be responsible for any increased costs relating to unpaid Original Amount of the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for affected Equipment Notes plus interest accrued thereon. Nothing in this Section 5.1, shall affect or postpone any of the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf obligations of Borrower or the rights of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation Lender pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)4.4.
Appears in 4 contracts
Samples: Loan Agreement (Airtran Holdings Inc), Loan Agreement (Airtran Holdings Inc), Loan Agreement (Airtran Holdings Inc)
Increased Costs Capital Adequacy. (a) IfIf any Change in Law shall impose, due to either (i) modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the introduction of account of, or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost to the Agentcredit extended by, any Lender Agent, (other than a Non-Funding Lender) and the result of any Lender, successor or assign thereof (each of which the foregoing shall be an “Affected Person”to increase the cost (other than for Indemnified Taxes, Excluded Taxes or Other Taxes) to such Lender of agreeing to make or making, funding making or maintaining any Loan (or of maintaining its obligation to make any reduction of the amount of any payment (whether of principal, interest, fee, compensation such Loan) or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in reduce the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or such Lender hereunder (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan whether of principal, letters of creditinterest or otherwise), commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the then Borrower shall, from time will pay to time, after written such Lender on demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand)demand and a calculation of the amount thereof in reasonable detail, on behalf a copy of which shall be furnished to Agent) such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amount or amounts sufficient to as will compensate such Affected Person Lender for such increased additional costs incurred or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3reduction suffered.
(b) If either any Lender (iother than a Non-Funding Lender) the introduction of or determines that any change following the date hereof Change in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive Law regarding capital adequacy or liquidity coverage, requirements (other than in respect of Taxes) has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of any Affected Personsuch Lender’s holding company, if any, as a consequence of its obligations hereunder this Agreement or any related document or arising in connection herewith or therewith the Loans made by such Lender to a level materially below that which any such Affected Person Lender or such Lender’s holding company, as applicable, could have achieved but for such introduction, change or compliance Change in Law (taking into consideration such Lender’s policies and the policies of such Affected Person Lender’s holding company, as applicable, with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person to be material, then, then from time to time, after time Borrower will pay to such Lender on demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand)demand and a calculation of the amount thereof in reasonable detail, the Borrower a copy of which shall pay the Agent on behalf of such Affected Person be furnished to Agent) such additional amount or amounts as will compensate such Affected Person Lender’s or such Lender’s holding company, as applicable, for any such reductionreduction suffered.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person a Lender setting forth the amount or amounts necessary to compensate such Lender or such Lender’s holding company, as the Affected Person under this Section 5.1(ccase may be, as specified in Sections 3.3(a) and (b), shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything Borrower shall pay such Lender on demand the amount shown as due on any such certificate pursuant to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes Section 2.4 of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention LetterAgreement.
(d) In determining Failure or delay on the part of any amount provided for in Lender to demand compensation pursuant to this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making 3.3 shall not constitute a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations waiver of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect Lender’s right to any claim for compensation under this Section 5.1 the demand such compensation; provided that Borrower shall not be required to compensate such Affected Person a Lender pursuant to this Section 3.3 for any amount increased costs or reductions incurred more than 180 days prior to the date that such Affected Person Lender notifies the Borrower of the event that gives Change in Law giving rise to such claimincreased costs or reductions and of such Lender’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
(fe) An Affected Person Each Lender shall not be entitled promptly notify Borrower and Agent of any event of which it has actual knowledge which will result in, and will use reasonable commercial efforts available to it (and not, in such Lender's sole judgment, otherwise disadvantageous to such Lender) to mitigate or avoid, (i) any compensation obligation by Borrower to pay any amount pursuant to this Section 5.1 Sections 3.3(a) or (b) or (ii) the occurrence of any circumstances described in Sections 3.3(a) or (b) (and, if any Lender has given notice of any such event described in clause (i) or (ii) above and thereafter such event ceases to the extent exist, such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Lender shall promptly so notify Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationshipAgent).
Appears in 4 contracts
Samples: Loan and Security Agreement (Katapult Holdings, Inc.), Loan and Security Agreement (Katapult Holdings, Inc.), Loan and Security Agreement (Katapult Holdings, Inc.)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost to the Facility Agent, any Lender Agent, any Lender, or any successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1x) Indemnified Taxes, (y) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (2z) Excluded Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Facility Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Facility Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty on the immediately following Distribution Date (30to the extent of available funds) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverageliquidity, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Facility Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reductionreduction but only to the extent there are amounts available therefore on any given day pursuant to Section 8.3(a).
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise otherwise, or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Facility Agent, the Borrower shall pay to the Facility Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefortherefor but only to the extent there are amounts available therefor on any given day pursuant to Section 8.3(a). A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Facility Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect The Borrower shall only be obligated to pay any claim for compensation under amounts required by this Section 5.1 the Borrower shall not be required to compensate such an Affected Person for any amount incurred more than 180 days prior to the date extent that such Affected Person notifies certifies to the Borrower of in writing that the event Borrower and its Affiliates are not the only borrower or customer that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing charging for similar costs, damages, losses or expenses at such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)time.
Appears in 3 contracts
Samples: Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.), Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.), Loan Financing and Servicing Agreement (GOLUB CAPITAL INVESTMENT Corp)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change that becomes effective following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable LawLaw (including, without limitation, any law or regulation resulting in any interest payments paid to any Lender under this Agreement being subject to any Tax, except for Taxes on the overall net income of such Lender), in each case whether foreign or domestic domestic, including under Basel III or Xxxx-Xxxxx, or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) including under Basel III or Xxxx-Xxxxx, there shall be any increase in the cost to the Administrative Agent, any Lender, any Lender Agent, any LenderLiquidity Bank or any Affiliate, participant, successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) or there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or Agreement, under any other Transaction Document, Document or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each caseLiquidity Agreement, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Administrative Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) 10 days after such demand; provided, provided that the amounts payable under this Section 5.1 2.10 shall be without duplication of amounts payable under Section 4.32.11 and shall not include any Excluded Taxes.
(b) If either (i) the introduction of or any change that becomes effective following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy adequacy, including under Basel III or liquidity coverageXxxx-Xxxxx, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Administrative Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction. For the avoidance of doubt, any increase in cost or reduction in Yield with respect to any Affected Party caused by regulatory capital allocation adjustments due to FAS 166, 167 and subsequent statements and interpretations shall constitute a circumstance on which such Affected Party may base a claim for reimbursement under this Section 2.10.
(c) If an Affected Person shall at as a result of any time event or circumstance similar to those described in clause (without regard to whether any Basel III Regulations a) or Xxxx-Xxxxx Regulations are then in effect(b) suffer or incur of this Section 2.10, (i) any explicit Affected Party is required to compensate a bank or implicit chargeother financial institution providing liquidity support, assessment, cost credit enhancement or expense by reason of the amount or type of assets, capital or supply of funding other similar support to such Affected Person or any of its Affiliates is required or expected to maintain Party in connection with this Agreement or the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment funding or maintenance of a reserve of stable fundingAdvances hereunder, a reduction in the amount of any sum received or receivable then within ten days after demand by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the AgentParty, the Borrower shall pay to the Agent, for the benefit of such Affected Person, Party such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the additional amount or amounts as may be necessary to compensate reimburse such Affected Party for any amounts payable or paid by it, or (ii) the Affected Person under this Section 5.1(cAdministrative Agent (whether in its own judgment or at the request of the Majority Lenders) deems it necessary or appropriate to obtain a credit rating on the Revolving Notes, the Borrower shall be delivered (x) provide (as promptly as possible and in any event no later than 60 days following receipt by the Borrower of such reasonable request) at least one Rating Agency designated by the Administrative Agent with all information and documents reasonably requested by such Rating Agency (to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything extent such information or documents are in the possession of or reasonably available to the contrary contained hereinBorrower) and otherwise cooperate with such Rating Agency’s review of the Transaction Documents and transactions contemplated hereby, all requestsand (y) pay the costs and expenses of such Rating Agency in respect of the rating of the Revolving Notes.
(d) For avoidance of doubt, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption interpretation of any law, rule or regulation for purposes clause (a) and (b) of this Section 5.1(c)2.10, regardless of any regulatory changes, rules, guidelines or directives under or issued in connection with Basel III or Xxxx-Xxxxx will be considered as a “change” hereunder, and will not be treated as having been adopted or having come into effect before the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letterhereof.
(de) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Failure or delay on the part of any Affected Person shall not be entitled Party to any demand compensation pursuant to this Section 5.1 to the extent 2.10 shall not constitute a waiver of such Affected Person is not imposing Party’s right to demand or receive such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)compensation.
Appears in 3 contracts
Samples: Loan and Servicing Agreement (Solar Senior Capital Ltd.), Loan and Servicing Agreement (Solar Senior Capital Ltd.), Loan and Servicing Agreement (Solar Senior Capital Ltd.)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable LawLaw (including, without limitation, any law or regulation resulting in any interest payments paid to any Lender under this Agreement being subject to any Tax, except for Taxes on the overall net income of such Lender), in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) there shall be any increase in the cost to the Administrative Agent, any Lender Agentor any Affiliate, any Lenderparticipant, successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) or there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or Agreement, under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Administrative Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) 10 days after such demand; provided, provided that the amounts payable under this Section 5.1 2.10 shall be without duplication of amounts payable under Section 4.32.11 and shall not include any Excluded Taxes.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Administrative Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction. For the avoidance of doubt, any increase in cost and/or reduction in Yield with respect to any Affected Party caused by regulatory capital allocation adjustments due to FAS 166, 167 and subsequent statements and interpretations shall constitute a circumstance on which such Affected Party may base a claim for reimbursement under this Section 2.10.
(c) If an as a result of any event or circumstance similar to those described in clause (a) or (b) of this Section 2.10, any Affected Person shall at any time (without regard Party is required to whether any Basel III Regulations compensate a bank or Xxxx-Xxxxx Regulations are then in effect) suffer other financial institution providing liquidity support, credit enhancement or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding other similar support to such Affected Person or any of its Affiliates is required or expected to maintain Party in connection with this Agreement or the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment funding or maintenance of a reserve of stable fundingAdvances hereunder, a reduction in the amount of any sum received or receivable then within ten days after demand by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the AgentParty, the Borrower shall pay to the Agent, for the benefit of such Affected Person, Party such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the additional amount or amounts as may be necessary to compensate the reimburse such Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible Party for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letteramounts payable or paid by it.
(d) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect Failure or delay on the part of any Affected Party to any claim for demand compensation under pursuant to this Section 5.1 the Borrower 2.10 shall not be required to compensate constitute a waiver of such Affected Person for any amount incurred more than 180 days prior Party’s right to the date that demand or receive such Affected Person notifies the Borrower of the event that gives rise to such claimcompensation.
(f) An Affected Person If at any time the Borrower shall not be entitled liable for the payment of any additional amounts in accordance with this Section 2.10, then the Borrower shall have the option to terminate this Agreement (in accordance with the provisions of Section 2.18(b) but without the payment of any compensation Make-Whole Premium); provided that such option to terminate shall in no event relieve the Borrower of paying any amounts owing pursuant to this Section 5.1 2.10 in accordance with the terms hereof.
(g) Notwithstanding anything herein to the extent such Affected Person is not imposing such charges contrary, the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all rules and regulations promulgated thereunder or compensation on other borrowers similarly situated issued in connection therewith shall be deemed to have been introduced after the Closing Date, thereby constituting a change for which a claim for increased costs or additional amounts may be made hereunder with respect to the Borrower hereunder under comparable credit facilities (it being understood that Affected Parties, regardless of the amount of such additional date enacted, adopted or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)issued.
Appears in 3 contracts
Samples: Loan and Servicing Agreement (Fifth Street Finance Corp.), Loan and Servicing Agreement (Fifth Street Finance Corp), Loan and Servicing Agreement (Fifth Street Finance Corp)
Increased Costs Capital Adequacy. (a) IfIf any Change in Law shall impose, due to either (i) modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the introduction of account of, or any change following the date hereof (including, without limitationcredit extended by, any change by way of imposition or increase of reserve requirements) in or in Lender and the interpretation, administration or application arising following the date hereof result of any Applicable Law, in each case whether foreign or domestic or (ii) of the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there foregoing shall be any to increase in the cost to the Agent, any such Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding making or maintaining any Loan (or of maintaining its obligation to make any reduction of the amount of any payment (whether of principal, interest, fee, compensation such Loan) or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in reduce the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or such Lender hereunder (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan whether of principal, letters of creditinterest or otherwise), commitments, then Borrower will pay to such Lender such additional amount or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis amounts as will compensate Lender for such demand), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs incurred or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3reduction suffered.
(b) If either (i) the introduction of or any change following the date hereof Lender determines that any Change in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive Law regarding capital adequacy or liquidity coverage, requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of any Affected Personsuch Lender’s holding company, if any, as a consequence of its obligations hereunder this Agreement or any related document or arising in connection herewith or therewith the Loans made by such Lender to a level below that which any such Affected Person Lender or such Lender’s holding company, as applicable, could have achieved but for such introduction, change or compliance Change in Law (taking into consideration such Lender’s policies and the policies of such Affected Person Lender’s holding company, as applicable, with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person to be material, then, then from time to time, after demand by time Borrower will pay to such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person Lender such additional amount or amounts as will compensate such Affected Person Lender’s or such Lender’s holding company, as applicable, for any such reductionreduction suffered.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person a Lender setting forth the amount or amounts necessary to compensate such Lender or such Lender’s holding company, as the Affected Person under this Section 5.1(ccase may be, as specified in Sections 3.6(a) and (b), shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for pay such Lender the amount shown as due on any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Lettersuch certificate within ten (10) days after receipt thereof.
(d) In determining Failure or delay on the part of any amount provided for in Lender to demand compensation pursuant to this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making 3.6 shall not constitute a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations waiver of such additional or increased costsLender’s right to demand such compensation; provided, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the that Borrower shall not be required to compensate such Affected Person a Lender pursuant to this Section 3.6 for any amount increased costs or reductions incurred more than 180 days prior to the date that such Affected Person Lender notifies the Borrower of the event that gives Change in Law giving rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges increased costs or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount reductions and of such additional Lender’s intention to claim compensation therefor; provided further, that if the Change in Law giving rise to such increased costs or increased cost between similarly situated borrowers may reductions is retroactive or if Lender is prohibited under Applicable Law from giving such notice, then the 180-day period referred to above shall be different after consideration extended to include the period of facility pricing, structure, usage patterns, capital treatment and banking relationship)retroactive effect thereof or any period where such notice could not lawfully be given.
Appears in 3 contracts
Samples: Loan and Security Agreement (Harvest Capital Credit Corp), Loan and Security Agreement (Harvest Capital Credit Corp), Loan and Security Agreement (Harvest Capital Credit Corp)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof interpretation of any Applicable Lawlaw or regulation (including, without limitation, any law or regulation resulting in each case whether foreign or domestic any interest payments paid to any Lender under this Agreement being subject to United States withholding tax) or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body governmental authority (whether or not having the force of law), (A) there shall be any increase in the cost to the Agent, any Lender Agent, or any LenderAffiliate, successor or assign or participant thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, within ten days after written demand complying with Section 2.09(c) by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand)Lender, on behalf of such Affected PersonParty, pay to the Agentsuch Lender, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3payments.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof interpretation of any law, guideline, rule or regulation, directive directive, request or request accounting principle or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive directive, request or request following the date hereof, accounting principle from any central bank, any Official Body other governmental authority, agency or agencyaccounting authority (whether or not having the force of law), including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for of such demand), the Borrower each Lender shall pay the Agent be paid, on behalf of such Affected Person Party (from Collections with respect to Pledged Receivables pursuant to, and subject to the priority of payment set forth in, Section 2.04), such additional amounts as will compensate such Affected Person Party for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.12.09, the Affected Person Party may use any reasonable averaging and attribution methods. The AgentEach Lender, on behalf of any Affected Person Party making a claim under this Section 5.12.09, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest demonstrable error.
(ed) With respect If, as a result of any event or circumstance similar to those described in Section 2.09(a) or 2.09(b), any claim for compensation under Affected Party (that is a Lender) is required to compensate a bank or other financial institution (including, without limitation, any Affiliate of Xxxxxx Xxxxxxx) providing liquidity support, credit enhancement or other similar support to such Affected Party in connection with this Section 5.1 Agreement, then, upon demand by such Affected Party, the Borrower shall not be required pay, in accordance with Section 2.04, to compensate such Affected Person Party such additional amount or amounts as may be necessary to reimburse such Affected Party for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person amounts paid by it, and shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount notify each Qualified Swap Counterparty of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)payment.
Appears in 3 contracts
Samples: Receivables Loan and Security Agreement (LEAF Equipment Leasing Income Fund III, L.P.), Receivables Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.), Receivables Loan and Security Agreement (LEAF Equipment Leasing Income Fund III, L.P.)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change that becomes effective following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable LawLaw (including, without limitation, any law or regulation resulting in any interest payments paid to any Lender under this Agreement being subject to any Tax, except for Indemnified Taxes and Excluded Taxes), in each case whether foreign or domestic domestic, including under Basel III or Xxxx-Xxxxx, or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) including under Basel III or Xxxx-Xxxxx, there shall be any increase in the cost to the Administrative Agent, any Lender, any Lender Agent, any LenderLiquidity Bank or any Affiliate, participant, successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) or there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or Agreement, under any other Transaction Document, Document or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each caseLiquidity Agreement, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Administrative Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) 10 days after such demand; provided, provided that the amounts payable under this Section 5.1 2.10 shall be without duplication of amounts payable under Section 4.32.11 and shall not include any Excluded Taxes.
(b) If either (i) the introduction of or any change that becomes effective following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy adequacy, including under Basel III or liquidity coverageXxxx-Xxxxx, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demanddemand and certifying that such demand is being made as a general policy of such Affected Party in the majority of similar transactions in which such claim had or would have an impact on such Affected Party’s rate of return, capital requirements or other economic loss), the Borrower shall pay the Administrative Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction. For the avoidance of doubt, any increase in cost or reduction in Yield with respect to any Affected Party caused by regulatory capital allocation adjustments due to FAS 166, 167 and subsequent statements and interpretations shall constitute a circumstance on which such Affected Party may base a claim for reimbursement under this Section 2.10.
(c) If an Affected Person shall at as a result of any time event or circumstance similar to those described in clause (without regard to whether any Basel III Regulations a) or Xxxx-Xxxxx Regulations are then in effect(b) suffer or incur of this Section 2.10, (i) any explicit Affected Party is required to compensate a bank or implicit chargeother financial institution providing liquidity support, assessment, cost credit enhancement or expense by reason of the amount or type of assets, capital or supply of funding other similar support to such Affected Person or any of its Affiliates is required or expected to maintain Party in connection with this Agreement or the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment funding or maintenance of a reserve of stable fundingAdvances hereunder, a reduction in the amount of any sum received or receivable then within ten days after demand by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the AgentParty, the Borrower shall pay to the Agent, for the benefit of such Affected Person, Party such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the additional amount or amounts as may be necessary to compensate reimburse such Affected Party for any amounts payable or paid by it, or (ii) the Affected Person under this Section 5.1(cAdministrative Agent (whether in its own judgment or, if Citibank is no longer serving as Administrative Agent, at the request of the Majority Lenders) deems it necessary or appropriate to obtain a credit rating on the Revolving Notes, the Borrower shall be delivered (x) provide (as promptly as possible and in any event no later than 60 days following receipt by the Borrower of such reasonable request) at least one Rating Agency designated by the Administrative Agent with all information and documents reasonably requested by such Rating Agency (to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything extent such information or documents are in the possession of or reasonably available to the contrary contained hereinBorrower) and otherwise cooperate with such Rating Agency’s review of the Transaction Documents and transactions contemplated hereby, all requestsand (y) pay the costs and expenses of such Rating Agency in respect of the rating of the Revolving Notes.
(d) For avoidance of doubt, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption interpretation of any law, rule or regulation for purposes clause (a) and (b) of this Section 5.1(c)2.10, regardless of any regulatory changes, rules, guidelines or directives under or issued in connection with Basel III or Xxxx-Xxxxx will be considered as a “change” hereunder, and will not be treated as having been adopted or having come into effect before the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letterhereof.
(de) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Failure or delay on the part of any Affected Person shall not be entitled Party to any demand compensation pursuant to this Section 5.1 to the extent 2.10 shall not constitute a waiver of such Affected Person is not imposing Party’s right to demand or receive such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)compensation.
Appears in 3 contracts
Samples: Loan and Servicing Agreement, Loan and Servicing Agreement (Carlyle GMS Finance, Inc.), Loan and Servicing Agreement (Carlyle GMS Finance, Inc.)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof interpretation of any Applicable Lawlaw or regulation (including, without limitation, any law or regulation resulting in each case whether foreign or domestic any interest payments paid to a Lender under this Agreement being subject to United States withholding tax) or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body governmental authority (whether or not having the force of law), (A) there shall be any increase in the cost to the Agent, Lender or any Lender Agent, any LenderAffiliate, successor or assign or participant thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, within ten days after written demand complying with Section 2.09(c) by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand)Lender, on behalf of such Affected PersonParty, pay to the AgentLender, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3payments.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof interpretation of any law, guideline, rule or regulation, directive directive, request or request accounting principle or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive directive, request or request following the date hereof, accounting principle from any central bank, any Official Body other governmental authority, agency or agencyaccounting authority (whether or not having the force of law), including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for of such demand), the Borrower Lender shall pay the Agent be paid, on behalf of such Affected Person Party (from Collections with respect to Pledged Receivables pursuant to, and subject to the priority of payment set forth in, Section 2.04), such additional amounts as will compensate such Affected Person Party for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.12.09, the Affected Person Party may use any reasonable averaging and attribution methods. The AgentLender, on behalf of any Affected Person Party making a claim under this Section 5.12.09, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest demonstrable error.
(ed) With respect If, as a result of any event or circumstance similar to those described in Section 2.09(a) or 2.09(b), any claim for compensation under Affected Party (that is a Lender) is required to compensate a bank or other financial institution (including, without limitation, any Affiliate of Xxxxxx Xxxxxxx) providing liquidity support, credit enhancement or other similar support to such Affected Party in connection with this Section 5.1 Agreement, then, upon demand by such Affected Party, the Borrower shall not be required pay, in accordance with Section 2.04, to compensate such Affected Person Party such additional amount or amounts as may be necessary to reimburse such Affected Party for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person amounts paid by it, and shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount notify each Qualified Swap Counterparty of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)payment.
Appears in 3 contracts
Samples: Receivables Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.), Receivables Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.), Receivables Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.)
Increased Costs Capital Adequacy. (a) If, due to either (i) on or after the introduction date of this Agreement, the adoption of any law or regulation, or any change following therein, or any change in the interpretation or administration thereof by any court, administrative or governmental authority, central bank or comparable agency charged with the interpretation or administration thereof or compliance by any Liquidity Bank with any request or directive issued after the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law) of any such authority, central bank or comparable agency shall either:
(i) impose, modify or deem applicable any reserve, special deposit or similar requirement against (or against any class of, a change in or in the amount of) assets or liabilities of, or commitments or extensions of credit by, any Liquidity Bank;
(ii) shall subject any Liquidity Bank to any tax of any kind with respect to this Agreement, the Liquidity Loan Notes or any Liquidity Loan made by it, or change the basis of taxation of payments to such Liquidity Bank in respect thereof (except for changes in the rate or the basis of tax on the overall net income of such Liquidity Bank); or
(iii) impose on any Liquidity Bank any other condition regarding this Agreement or its Liquidity Commitment, and the result of any event referred to in clause (Ai)-(iii) there above shall be any to increase in the cost to any Liquidity Bank of issuing or maintaining its Liquidity Commitment or its LIBOR Liquidity Loans or to reduce the Agent, amounts receivable by any Lender Agent, any Lender, successor Liquidity Bank hereunder (which increase in cost or assign thereof (each of which reduction in amounts receivable shall be an “Affected Person”) the result of agreeing to make or making, funding or maintaining any Loan (or any reduction Liquidity Bank’s reasonable allocation of the amount aggregate of any payment (whether of principal, interest, fee, compensation such cost increase or otherwise) to any Affected Person hereunderreductions resulting from such events), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each caseupon written demand by any Liquidity Bank, the Borrower BAFC shall, within ten (10) Business Days of receipt of such demand, be obligated to pay to such Liquidity Bank, from time to timetime as specified by such Liquidity Bank, after written demand by additional amounts which in the Agent (which demand aggregate shall be accompanied by sufficient to compensate such Liquidity Bank for such increased cost or reduction, together with interest on each such amount from the date demanded until payment in full thereof at a statement rate per annum equal to the lesser of (A) the Legal Rate or (B) ABR. A certificate setting forth in reasonable detail the basis for such demandincreased cost incurred or reduction in amounts receivable by any Liquidity Bank as a result of any event mentioned in clause (i), on behalf (ii) or (iii) of this subsection, submitted by any Liquidity Bank to BAFC, shall, unless otherwise required by law, be conclusive, absent manifest error, as to the amount thereof. Each Liquidity Bank shall give BAFC and the Administrative Agent notice, within a reasonable period of time of such Affected PersonLiquidity Bank having actual knowledge of the occurrence of any event that will entitle such Liquidity Bank to claim the payment of additional amounts under this subsection 4.05(a). Notwithstanding the foregoing, BAFC shall not be required to pay any Liquidity Bank, as applicable, such additional amounts to the Agent, on behalf of extent such Affected Person, additional amounts sufficient relate to compensate such Affected Person for such increased costs or reduced payments within thirty periods prior to one hundred and twenty (30120) days after of BAFC’s receipt of such demand; providedprovided that, that if such change in law giving rise to such increased cost or reduction is retroactive, then the amounts payable under this Section 5.1 one hundred and twenty (120) day period shall be without duplication extended to include the period of amounts payable under Section 4.3retroactive effect thereof.
(b) If either any of the events requiring payments of additional amounts by BAFC under subsection (ia) the introduction of occurs, each Liquidity Bank shall take such steps as may be reasonable to avoid BAFC being required to pay any additional amounts and shall consult with BAFC in good faith with a view to agreeing to alternative arrangements which would not subject such Liquidity Bank to any unreimbursed cost and would not otherwise be disadvantageous to such Liquidity Bank, whereby any such requirement can be avoided or mitigated, including without limitation, fulfilling any change following the date hereof in such Liquidity Bank’s obligations through another branch or in the interpretation, administration affiliate.
(c) If any Liquidity Bank shall have determined that on or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following after the date hereof, from the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bankbank or comparable agency charged with the interpretation or administration thereof, any Official Body or agency, including, without limitation, compliance by an Affected Person any Liquidity Bank or any corporation controlling such Liquidity Bank with any request or directive regarding capital adequacy (whether or liquidity coveragenot having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the capital of any Affected Person, such Liquidity Bank or such corporation as a consequence of the Liquidity Commitment or its obligations hereunder or under any related document or arising in connection herewith or therewith participation agreement to a level below that which any such Affected Person Liquidity Bank or such corporation could have achieved but for such introductionadoption, change or compliance (taking into consideration the policies of such Affected Person Liquidity Bank or such corporation with respect to capital adequacy and liquidity coverage), adequacy) by an amount deemed by such Affected Person Liquidity Bank to be material, then, then from time to time, within ten (10) Business Days after demand by such Affected Person (which demand Liquidity Bank, BAFC shall be accompanied by a statement setting forth in reasonable detail the basis for obligated to pay or cause to be paid to such demand), the Borrower shall pay the Agent on behalf of such Affected Person Liquidity Bank such additional amount or amounts as will compensate such Affected Person Liquidity Bank for such reduction.
(c) If an Affected Person . Each Liquidity Bank shall at any give BAFC and the Administrative Agent notice within a reasonable time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of such Liquidity Bank having actual knowledge of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount occurrence of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason event that will entitle the Liquidity Bank to claim the payment of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or additional amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest errorsubsection 4.05(c). Notwithstanding anything to the contrary contained hereinforegoing, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower BAFC shall not be responsible for required to pay any increased costs relating Liquidity Bank, as applicable, such additional amounts to the Retention Requirements so long as extent such amounts relate to periods prior to one hundred and twenty (120) days of BAFC’s receipt of such demand; provided that, if such change in law giving rise to such reduction is retroactive, then the Retention Holder is in compliance with one hundred and twenty (120) day period shall be extended to include the requirements set forth in the Retention Letterperiod of retroactive effect thereof.
(d) In determining If any amount provided Liquidity Bank on its own behalf makes a demand for in amounts owed under this Section 5.14.05, BAFC shall have the right, if no event then exists which is or with the lapse of time or notice or both would be a Mandatory Liquidation Event, within ninety (90) days of the date of such demand, to remove such Liquidity Bank (the “Affected Person”) and to designate another lender (the “Replacement Person”) reasonably acceptable to the Administrative Agent and meeting the requirements of Section 11.05 hereof to purchase the Affected Person’s outstanding Liquidity Loans and to assume the Affected Person’s obligations under this Agreement; provided that increased costs incurred by such Liquidity Bank prior to the date of its replacement shall have been paid as provided in the previous paragraph; and provided further, that BAFC first receives confirmation from the Series 2000-1 Rating Agencies that such replacement will not result in the reduction or withdrawal of the rating of the Commercial Paper. The Affected Person agrees to sell to the Replacement Person its outstanding Liquidity Loans (at par, with accrued interest through the date of purchase, in immediately available funds) and to delegate to the Replacement Person its obligations to BAFC and its future obligations to the Administrative Agent under this Agreement. Upon such sale and delegation by the Affected Person and the purchase and assumption by the Replacement Person, and compliance with the provisions of Section 11.05 hereof, the Affected Person may use any reasonable averaging shall cease to be a Liquidity Bank hereunder and attribution methodsthe Replacement Person shall become a Liquidity Bank under this Agreement. The Agent, on behalf of any Each Affected Person making a claim under this Section 5.1shall continue to be entitled to receive from BAFC its share of interest, shall submit fees, costs and other sums which have not been assigned by the Affected Person to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest errorReplacement Person.
(e) With respect Notwithstanding anything in this Agreement to the contrary, it is understood that any claim for compensation Participant shall be entitled to the payment of increased costs under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this 4.05 and Section 5.1 4.06 hereof to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated increased costs would have been required to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)paid had no participating interest been sold.
Appears in 2 contracts
Samples: Liquidity Agreement (Bunge LTD), Liquidity Agreement (Bunge LTD)
Increased Costs Capital Adequacy. (a) IfSubject to the provisions of Section 2.18 (which shall be controlling with respect to the matters covered thereby), due to either in the event that any Lender shall determine (iwhich determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) the introduction of that any law, treaty or governmental rule, regulation or order, or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in therein or in the interpretation, administration or application arising following thereof (including the date hereof introduction of any Applicable Lawnew law, treaty or governmental rule, regulation or order), or any determination of a court or governmental authority, in each case whether foreign that becomes effective after the date hereof, or domestic or (ii) the compliance by such Lender with any guideline guideline, request or request following directive issued or made after the date hereof from by any central bank or other Official Body governmental or quasi-governmental authority (whether or not having the force of law), ): (Ai) there shall be any increase in the cost to the Agent, any subjects such Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan (or its applicable lending office) to any reduction additional Tax (other than any Tax on the overall net income of the amount such Lender) with respect to this Agreement or any of its obligations hereunder or any payment payments to such Lender (whether or its applicable lending office) of principal, interest, feefees or any other amount payable hereunder; (ii) imposes, compensation modifies or otherwise) to holds applicable any Affected Person hereunderreserve (including any marginal, emergency, supplemental, special or other reserve), as special deposit, compulsory loan, FDIC insurance or similar requirement against assets held by, or deposits or other liabilities in or for the case may beaccount of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender (B) there shall be other than any reduction such reserve or other requirements with respect to Eurodollar Rate Loans that are reflected in the amount definition of Adjusted Eurodollar Rate); or (iii) imposes any other condition (other than with respect to a Tax matter) on or affecting such Lender (or its applicable lending office) or its obligations hereunder or the London interbank market; and the result of any sum of the foregoing is to increase the cost to such Lender of agreeing to make, making or maintaining Loans hereunder or to reduce any amount received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or such Lender (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable applicable lending office) with respect thereto, ; then, in each any such case, Borrower shall pay to such Lender within 10 days upon receipt of the statement referred to in the next sentence, such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its sole discretion shall determine) as may be necessary to compensate such Lender for any such increased cost or reduction in amounts received or receivable hereunder; provided that Borrower shallshall not be obligated to reimburse any Lender for such increase or reduction for any period 180 days prior to such Lender providing notice if such Lender was aware of the circumstances that existed which would cause such increase or reduction during such 180 day period. Such Lender shall deliver to Borrower (with a copy to Administrative Agent) a written statement, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to calculating the Agent, on behalf of such Affected Person, additional amounts sufficient owed to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable Lender under this Section 5.1 2.17(a), which statement shall be without duplication of amounts payable under Section 4.3conclusive and binding upon all parties hereto absent manifest error.
(b) If either (i) In the introduction of or event that any change following Lender shall have determined that the date hereof adoption, effectiveness, phase-in or in the interpretation, administration or application arising following applicability after the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverage), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c)(or any provision thereof) regarding capital adequacy, regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth change therein or in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional interpretation or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).administration thereof
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Allegiance Telecom Inc), Credit and Guaranty Agreement (Allegiance Telecom Inc)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change that becomes effective following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable LawLaw (including, without limitation, any law or regulation resulting in any interest payments paid to any Lender under this Agreement being subject to any Tax, except for Indemnified Taxes and Excluded Taxes), in each case whether foreign or domestic domestic, including under Basel III or Xxxx-Xxxxx, or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) including under Basel III or Xxxx-Xxxxx, there shall be any increase in the cost to the Administrative Agent, any Lender, any Lender Agent, any LenderLiquidity Bank or any Affiliate, participant, successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) or there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or Agreement, under any other Transaction Document, Document or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each caseLiquidity Agreement, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Administrative Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) 10 days after such demand; provided, provided that the amounts payable under this Section 5.1 2.10 shall be without duplication of amounts payable under Section 4.32.11 and shall not include any Excluded Taxes.
(b) If either (i) the introduction of or any change that becomes effective following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy adequacy, including under Basel III or liquidity coverageXxxx-Xxxxx, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demanddemand and certifying that such demand is being made as a general policy of such Affected Party in the majority of similar transactions in which such claim had or would have an impact on such Affected Party’s rate of return, capital requirements or other economic loss), the Borrower shall pay the Administrative Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction. For the avoidance of doubt, any increase in cost or reduction in Yield with respect to any Affected Party caused by regulatory capital allocation adjustments due to FAS 166, 167 and subsequent statements and interpretations shall constitute a circumstance on which such Affected Party may base a claim for reimbursement under this Section 2.10.
(c) If an Affected Person shall at as a result of any time event or circumstance similar to those described in clause (without regard to whether any Basel III Regulations a) or Xxxx-Xxxxx Regulations are then in effect(b) suffer or incur of this Section 2.10, (i) any explicit Affected Party is required to compensate a bank or implicit chargeother financial institution providing liquidity support, assessment, cost credit enhancement or expense by reason of the amount or type of assets, capital or supply of funding other similar support to such Affected Person or any of its Affiliates is required or expected to maintain Party in connection with this Agreement or the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment funding or maintenance of a reserve of stable fundingAdvances hereunder, a reduction in the amount of any sum received or receivable then within ten days after demand by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the AgentParty, the Borrower shall pay to the Agent, for the benefit of such Affected Person, Party such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the additional amount or amounts as may be necessary to compensate reimburse such Affected Party for any amounts payable or paid by it, or (ii) the Affected Person under this Section 5.1(cAdministrative Agent (whether in its own judgment or, if Citibank is no longer serving as Administrative Agent, at the request of the Majority Lenders) deems it necessary or appropriate to obtain a credit rating on the Revolving Notes and the Advances, the Borrower shall be delivered (x) provide (as promptly as possible and in any event no later than 60 days following receipt by the Borrower of such reasonable request) at least one Rating Agency designated by the Administrative Agent with all information and documents reasonably requested by such Rating Agency (to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything extent such information or documents are in the possession of or reasonably available to the contrary contained hereinBorrower) and otherwise cooperate with such Rating Agency’s review of the Transaction Documents and transactions contemplated hereby, all requestsand (y) pay the costs and expenses of such Rating Agency in respect of the rating of the Revolving Notes and the Advances.
(d) For avoidance of doubt, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption interpretation of any law, rule or regulation for purposes clause (a) and (b) of this Section 5.1(c)2.10, regardless of any regulatory changes, rules, guidelines or directives under or issued in connection with Basel III or Xxxx-Xxxxx will be considered as a “change” hereunder, and will not be treated as having been adopted or having come into effect before the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letterhereof.
(de) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Failure or delay on the part of any Affected Person shall not be entitled Party to any demand compensation pursuant to this Section 5.1 to the extent 2.10 shall not constitute a waiver of such Affected Person is not imposing Party’s right to demand or receive such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)compensation.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (TCG Bdc, Inc.), Loan and Servicing Agreement (Carlyle GMS Finance, Inc.)
Increased Costs Capital Adequacy. (a) IfSubject to subsection (e) below, if, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost (other than Taxes) to the Agent, any Lender Facility Agent, any Lender, or any successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1x) Indemnified Taxes, (y) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (2z) Excluded Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Facility Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Facility Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demandon the next Distribution Date in accordance with the priorities set forth in Section 8.3; provided, that the amounts payable under this Section 5.1 shall be (i) without duplication of amounts payable under Section 4.3, and (ii) due and payable on any given date only to the extent there are amounts available therefor pursuant to Section 8.3.
(b) If Subject to subsection (e) below, if either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document other Transaction Document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person to be material, then, from time to time, after written demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Facility Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reductionreduction but only to the extent there are amounts available therefore pursuant to Section 8.3.
(c) If Subject to subsection (e) below, if an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulationsotherwise, then, then upon demand by or on behalf of such Affected Person through the Facility Agent, the Borrower shall pay to the Facility Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefortherefor but only to the extent there are amounts available therefor on the next Distribution Date pursuant to Section 8.3. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Facility Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim Any demand for compensation under this Section 5.1 must be made within 120 days of the date the related cost, damage, loss or expense is incurred by the applicable Affected Person and the Borrower shall not be required to compensate pay such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent amounts unless such Affected Person is not imposing charging for similar costs, damages, losses or expenses at such charges or compensation on other borrowers similarly situated time to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may or customers (as certified in such demand). Following such demand for compensation, the Borrower shall not be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)subject to any applicable Prepayment Fee or other premium.
Appears in 2 contracts
Samples: Loan Financing and Sale Agreement (AB Private Credit Investors Corp), Loan Financing and Servicing Agreement (AB Private Credit Investors Corp)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Lawlaw or regulation (including, without limitation, any law or regulation resulting in any interest payments paid to the Lender under this Agreement being subject to United States withholding tax) or any guideline of any accounting board or authority (whether or not a part of any government) which is responsible for the establishment or interpretation of national or international accounting principles, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body Government Entity (whether or not having the force of law), (A) there shall be any increase in the cost to the Agent, the Lender, or any Lender Agent, any LenderAffiliate, successor or assign thereof (each of which shall be an “"Affected Person”Party") of agreeing to make or making, funding or maintaining any Loan (or any reduction of the amount of any payment (whether of principal, interest, feefees, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after upon written demand complying with Section 2.08(c) by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected PersonParty, pay to the Agent (from Collections pursuant to, and subject to the priority of payment set forth in, Section 2.05), on behalf of such Affected Party, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) days after such demand; providedpayments. For the avoidance of doubt, that FASB Interpretation No. 46 or any other interpretation of Accounting Research Bulletin No. 51 by the amounts payable under Financial Accounting Standards Board shall constitute a change in the interpretation, administration or application of a guideline subject to this Section 5.1 shall be without duplication of amounts payable under Section 4.32.08(a).
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereofrequest, from any central bank, any Official Body Government Entity or agencyany accounting board or authority (whether or not a part of government) which is responsible for the establishment or interpretation of national or international accounting principles, in each case whether foreign or domestic (whether or not having the force of law), including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for of such demand), the Borrower Agent shall pay the Agent be paid, on behalf of such Affected Person Party (from Collections pursuant to, and subject to the priority of payment set forth in, Section 2.05), such additional amounts as will compensate such Affected Person Party for such reduction. For the avoidance of doubt, FASB Interpretation No. 46 or any other interpretation of Accounting Research Bulletin No. 51 by the Financial Accounting Standards Board shall constitute a change in the interpretation, administration or application of a guideline subject to this Section 2.08(b).
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.12.08, the Affected Person Party may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.08, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest demonstrable error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 2 contracts
Samples: Receivables Loan and Security Agreement (Maxtor Corp), Receivables Loan and Security Agreement (Maxtor Corp)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost (other than Taxes) to the Facility Agent, any Lender Agent, any Lender, or any successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction DocumentDocument (other than as a result of Taxes), or (C) any Recipient is subject to any Taxes (other than (1x) Indemnified Taxes, (y) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (2z) Excluded Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Facility Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Facility Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverageliquidity, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person to be material, then, from time to timetime but subject to Section 8.3, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Facility Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reductionreduction but only to the extent there are amounts available therefore on any given day pursuant to Section 8.3(a).
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise otherwise, or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Facility Agent, the Borrower shall pay to the Facility Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefortherefor but only to the extent there are amounts available therefor on any given day pursuant to Section 8.3(a). A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Facility Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 2 contracts
Samples: Loan Financing and Servicing Agreement (MSD Investment Corp.), Loan Financing and Servicing Agreement (MSD Investment Corp.)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction implementation of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve reserve, capital adequacy or liquidity requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable LawLaw (including without limitation the Basel III Regulations), in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (including without limitation in connection with the Basel III Regulations) (whether or not having the force of law), (A) there shall be any increase in the cost to the Facility Agent, any Lender Agent, any Lender, or any successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1x) Indemnified Taxes, (y) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (2z) Excluded Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time subject to time, after written demand by receipt of a certificate delivered pursuant to Section 5.1(e) and the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Persontiming requirements thereof, pay to the Facility Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3payments.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverage), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 2 contracts
Samples: Loan Financing and Servicing Agreement (Golub Capital Direct Lending Corp), Loan Financing and Servicing Agreement (Golub Capital BDC 4, Inc.)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change that becomes effective following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable LawLaw (including, without limitation, any law or regulation resulting in any interest payments paid to any Lender under this Agreement being subject to any Tax, except for Indemnified Taxes and Excluded Taxes), in each case whether foreign or domestic domestic, including under Basel III (including, without limitation, in connection with the calculation of the “liquidity coverage ratio” thereunder) or Xxxx-Xxxxx, or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body Governmental Authority (whether or not having the force of law), including under Basel III (Aincluding, without limitation, in connection with the calculation of the “liquidity coverage ratio” thereunder) or Xxxx-Xxxxx, there shall be any increase in the cost to the Administrative Agent, any Lender, any Lender Agent, any LenderLiquidity Bank or any Affiliate, participant, successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) or there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or Agreement, under any other Transaction Document, Document or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each caseLiquidity Agreement, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Administrative Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) 10 days after such demand; provided, provided that the amounts payable under this Section 5.1 2.10 shall be without duplication of amounts payable under Section 4.32.11 and shall not include any Excluded Taxes.
(b) If either (i) the introduction of or any change that becomes effective following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy adequacy, including under Basel III (including, without limitation, in connection with the calculation of the “liquidity coverage ratio” thereunder) or liquidity coverageXxxx-Xxxxx, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demanddemand and certifying that such demand is being made as a general policy of such Affected Party in the majority of similar transactions in which such claim had or would have an impact on such Affected Party’s rate of return, capital requirements or other economic loss), the Borrower shall pay the Administrative Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction. For the avoidance of doubt, any increase in cost or reduction in Yield with respect to any Affected Party caused by regulatory capital allocation adjustments due to FAS 166, 167 and subsequent statements and interpretations shall constitute a circumstance on which such Affected Party may base a claim for reimbursement under this Section 2.10.
(c) If an Affected Person shall at as a result of any time event or circumstance similar to those described in clause (without regard to whether any Basel III Regulations a) or Xxxx-Xxxxx Regulations are then in effect(b) suffer or incur of this Section 2.10, (i) any explicit Affected Party is required to compensate a bank or implicit chargeother financial institution providing liquidity support, assessment, cost credit enhancement or expense by reason of the amount or type of assets, capital or supply of funding other similar support to such Affected Person or any of its Affiliates is required or expected to maintain Party in connection with this Agreement or the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment funding or maintenance of a reserve of stable fundingAdvances hereunder, a reduction in the amount of any sum received or receivable then within ten days after demand by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the AgentParty, the Borrower shall pay to the Agent, for the benefit of such Affected Person, Party such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the additional amount or amounts as may be necessary to compensate reimburse such Affected Party for any amounts payable or paid by it, or (ii) the Affected Person under this Section 5.1(cAdministrative Agent (whether in its own judgment or, if Citibank is no longer serving as Administrative Agent, at the request of the Majority Lenders) deems it necessary or appropriate to obtain a credit rating on the Revolving Notes, the Borrower shall be delivered (x) provide (as promptly as possible and in any event no later than 60 days following receipt by the Borrower of such reasonable request) at least one Rating Agency designated by the Administrative Agent with all information and documents reasonably requested by such Rating Agency (to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything extent such information or documents are in the possession of or reasonably available to the contrary contained hereinBorrower) and otherwise cooperate with such Rating Agency’s review of the Transaction Documents and transactions contemplated hereby, all requestsand (y) pay the costs and expenses of such Rating Agency in respect of the rating of the Revolving Notes.
(d) For avoidance of doubt, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption interpretation of any law, rule or regulation for purposes clause (a) and (b) of this Section 5.1(c)2.10, regardless any regulatory changes, rules, guidelines or directives under or issued in connection with Basel III (including, without limitation, in connection with the calculation of the date enacted“liquidity coverage ratio” thereunder) or Xxxx-Xxxxx will be considered as a “change” hereunder, adopted, issued or implemented; provided, however, that the Borrower shall and will not be responsible for any increased costs relating to treated as having been adopted or having come into effect before the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letterdate hereof.
(de) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Failure or delay on the part of any Affected Person shall not be entitled Party to any demand compensation pursuant to this Section 5.1 to the extent 2.10 shall not constitute a waiver of such Affected Person is not imposing Party’s right to demand or receive such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)compensation.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (NF Investment Corp.), Loan and Servicing Agreement (NF Investment Corp.)
Increased Costs Capital Adequacy. (a) If, due to either (i) after the introduction date of this Agreement, the adoption of or any change following the date hereof (including, without limitation, in any change by way of imposition law or increase of reserve requirements) in regulation or in the interpretation, administration interpretation or application arising following the date hereof of thereof by any Applicable Law, in each case whether foreign Governmental Authority or domestic or (ii) the compliance by any Bank with any guideline request or request following the date hereof from any central bank or other Official Body directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date of this Agreement (provided that the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, Basel III and all requests, rules, guidelines or directives under, or issued in connection with, the foregoing shall be deemed to be a change in requirements of law, regardless of the date enacted, adopted or issued):
(i) shall subject any Bank or Issuing Bank to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit or any Application made by it, or change the basis of taxation of payments to such Bank or Issuing Bank in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 4.3 and the imposition of, or any change in the rate of, any Excluded Tax);
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Bank that is not otherwise included in the determination of the Eurodollar Rate hereunder (except for amounts covered by Section 3.4 or any other Section hereof); or
(iii) shall impose on such Bank any other condition; and the result of any of the foregoing is to increase the actual cost to such Bank, by an amount that such Bank deems to be material, of making, converting into, continuing or maintaining Eurodollar Rate Loans or issuing or participating in Letters of Credit or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay such Bank, upon its demand in the manner set forth in Section 4.8(b), any additional amounts, computed by such Bank in accordance with Section 4.8(a), necessary to compensate such Bank for such actual increased cost or reduced amount receivable that is attributable to Loans or Commitments (Ato the extent that such Bank has not already been compensated or reimbursed for such amounts pursuant to any other provision of this Agreement). If any Bank becomes entitled to claim any additional amounts pursuant to this Section 4.1(a) there from the Borrower, it shall be any increase promptly notify the Borrower, through the Administrative Agent, of the event by reason of which it has become so entitled in the cost to manner set forth in Section 4.8(b).
(b) If any Bank determines in good faith that the Agent, any Lender Agent, any Lender, successor or assign thereof (each introduction of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan (or any reduction of change in or in the amount interpretation or application by any Governmental Authority of any payment law or regulation regarding capital adequacy after the date of this Agreement or compliance by such Bank or any corporation controlling such Bank with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of principal, interest, fee, compensation law) made or otherwise) to any Affected Person hereunder)issued after the date of this Agreement does or shall have the effect, as the case may be, (B) there shall be any reduction in the amount a result of any sum received or receivable by an Affected Person such Bank’s obligations under this Agreement or under any other Transaction DocumentLetter of Credit, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the such Bank’s or such corporation’s capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Bank or such corporation could have achieved but for such introduction, change or compliance (taking into consideration the such Bank’s or such corporation’s policies of such Affected Person with respect to capital adequacy and liquidity coverage), adequacy) by an amount deemed by such Affected Person Bank to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, Administrative Agent for the benefit account of such Affected PersonBank, from time to time as specified by such amount as will, Bank in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements manner set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).in
Appears in 2 contracts
Samples: Credit Agreement (Centerpoint Energy Inc), Credit Agreement (Centerpoint Energy Inc)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost to the Administrative Agent, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Administrative Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Administrative Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise otherwise, or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Administrative Agent, the Borrower shall pay to the Administrative Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 2 contracts
Samples: Loan Financing and Servicing Agreement (FS Investment Corp III), Loan Financing and Servicing Agreement (FS Investment Corp II)
Increased Costs Capital Adequacy. (a) If, due to If either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof interpretation of any Applicable Law, in each case whether foreign law or domestic regulation or (ii) the compliance by an Affected Party with any guideline or request following the date hereof from any central bank or other Official Body Governmental Authority (whether or not having the force of law), shall (A) there shall be subject an Affected Party to any increase in Tax (except for Taxes on the cost overall net income of such Affected Party), duty or other charge with respect to the AgentCapital, or any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing right to make the funding hereunder, or making, funding or maintaining any Loan (or any reduction of the amount of on any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person made hereunder), as the case may be, (B) there shall be impose, modify or deem applicable any reduction reserve requirement (including, without limitation, any reserve requirement imposed by the Board of Governors of the Federal Reserve System, but excluding any reserve requirement, if any, included in the determination of Interest), special deposit or similar requirement against assets of, deposits with or for the amount of, or credit extended by, any Affected Party, or (C) impose any other condition affecting the Capital or a Lender's rights hereunder, the result of which is to increase the cost to any Affected Party or to reduce the amount of any sum received or receivable by an Affected Person Party under this Agreement or under any other Transaction DocumentAgreement, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, then within ten days after written demand by the Agent such Affected Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of the Borrower shall pay directly to such Affected Person, pay to the Agent, on behalf of Party such Affected Person, additional amount or amounts sufficient to as will compensate such Affected Person Party for such additional or increased costs cost incurred or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3reduction suffered.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof interpretation of any law, guideline, rule or rule, regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body bank or agencyother governmental authority or agency (whether or not having the force of law), including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected Person, Party as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverage), adequacy) by an amount deemed by such Affected Person Party to be material, then, then from time to time, within ten days after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of directly to such Affected Person Party such additional amount or amounts as will compensate such Affected Person Party for such reduction. For avoidance of doubt, any interpretation of Accounting Research Bulletin No. 51 by the Financial Accounting Standards Board shall constitute an adoption, change, request or directive subject to this Section 2.13(b).
(c) If an as a result of any event or circumstance similar to those described in clause (a) or (b) of this Section, any Affected Person shall at any time (without regard Party is required to whether any Basel III Regulations compensate a bank or Xxxx-Xxxxx Regulations are then in effect) suffer other financial institution providing liquidity support, credit enhancement or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding other similar support to such Affected Person or any of its Affiliates is required or expected to maintain Party in connection with this Agreement or the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment funding or maintenance of a reserve of stable fundingthe Capital, a reduction in the amount of any sum received or receivable then within ten days after demand by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the AgentParty, the Borrower shall pay to the Agent, for the benefit of such Affected Person, Party such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the additional amount or amounts as may be necessary to compensate the reimburse such Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible Party for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letteramounts payable or paid by it.
(d) In determining any amount provided for in this Section 5.1Section, the Affected Person Party may use any reasonable averaging and attribution methods. The Agent, on behalf of any Any Affected Person Party making a claim under this Section 5.1, shall submit to the Borrower Servicer a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect written description as to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may or reduction and the calculation thereof, which written description shall be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)conclusive absent demonstrable error.
Appears in 2 contracts
Samples: Loan and Security Agreement (Credit Acceptance Corp), Loan and Security Agreement (Credit Acceptance Corp)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost (other than Taxes) to the Facility Agent, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction (other than as a result of the deduction or withholding of any Taxes) in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (2C) Excluded Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Facility Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Facility Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be (i) without duplication of amounts payable under Section 4.34.3 and (ii) due and payable on a given date only to the extent there are amounts available therefor pursuant to Section 8.3. Any demand for compensation under this Section 5.1 must be made within 270 days of the date the related cost, damage, loss or expense is incurred by the applicable Affected Person and the Borrower shall not be the only borrower or customer that such Affected Person is charging for similar costs, damages, losses or expenses at such time.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document Transaction Document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person to be material, then, from time to time, after on the Distribution Date following the Borrower’s receipt of such written demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Facility Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reductionreduction but only to the extent there are amounts available therefore on any given day pursuant to Section 8.3.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise otherwise, or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon on the Distribution Date following the Borrower’s receipt of such written demand by or on behalf of such Affected Person through the Facility Agent, the Borrower shall pay to the Facility Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefortherefor but only to the extent there are amounts available therefor on any given day pursuant to Section 8.3. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Facility Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 2 contracts
Samples: Loan Financing and Servicing Agreement (Oaktree Specialty Lending Corp), Loan Financing and Servicing Agreement (Oaktree Strategic Income Corp)
Increased Costs Capital Adequacy. (a) If, due to either (i) on or after the introduction Effective Date, the adoption of any law or any change following the date hereof (includinggovernmental or quasi-governmental rule, without limitationregulation, any change by way of imposition or increase of reserve requirements) in or in the interpretationpolicy, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body directive (whether or not having the force of law), (A) there shall be any increase in the cost to the Agent, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, promulgation, implementation or administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance thereof by any Affected Person governmental or quasi-governmental authority, central bank or comparable agency charged with any law, guideline, rule, regulation, directive the interpretation or request following the date hereof, from any central bank, any Official Body or agency, administration thereof including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverage), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and guidelines or directives promulgated in connection with the Retention Requirements shallXxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (or any other statute referred to therein or amended thereby) or any rules, in each caseguidelines, be deemed to be a change standards, or adoption of directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Regulations and Supervisory Practices (or any law, rule successor or regulation for purposes of this Section 5.1(csimilar authority), regardless of the date enacted, adoptedadopted or issued, issued or implemented; providedcompliance by the Bank with any request or directive (whether or not having the force of law) of any such authority, howevercentral bank or comparable agency:
(i) subjects the Bank to any Taxes, that or changes the Borrower shall not be responsible for any increased costs relating basis of taxation of payments (other than with respect to Excluded Taxes) to the Retention Requirements so long as Bank in respect of the Retention Holder Loan, or
(ii) imposes, modifies or increases or deems applicable any reserve, assessment, insurance charge, special deposit or similar requirement against entering into this Agreement, or assets held by deposits with or for the account of the Bank, or
(iii) imposes any other condition regarding this Agreement, the result of which is to increase the cost to the Bank of entering into and maintaining this Agreement in compliance making, funding or maintaining the Commitment, or reduces any amount receivable by the Bank hereunder or in connection with the requirements set forth Commitment or requires the Bank to make any payment in connection therewith by an amount deemed material by the Retention LetterBank, and the result of any of the foregoing is to increase the cost to the Bank of maintaining the Commitment or to reduce the return received by Bank, then, within thirty (30) days of demand by the Bank, the City shall pay the Bank such additional amount or amounts as will compensate the Bank for such increased cost or reduction in amount received.
(db) In determining any amount provided for in this Section 5.1, If the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that Bank determines the amount of capital required or expected to be maintained by the Bank, or any corporation controlling the Bank, is increased as a result of a Change in Law (as hereinafter defined), then, within thirty (30) days of demand by the Bank, the City shall pay to the Bank the amount necessary to compensate for any shortfall in the rate of return on the portion of such additional increased capital which the Bank determines is attributable to this Agreement or increased cost between similarly situated borrowers may be different the Commitment (after consideration of facility pricing, structure, usage patterns, taking into account the Bank’s policies as to capital treatment and banking relationshipadequacy).
Appears in 2 contracts
Samples: Loan Agreement, Loan Agreement
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable LawLaw (including, without limitation, any law or regulation resulting in any interest payments paid to any Lender under this Agreement being subject to any Tax, except for Taxes on the overall net income of such Lender), in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) there shall be any increase in the cost to the Administrative Agent, any Lender, any Lender Agent, any LenderLiquidity Bank or any Affiliate, participant, successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) or there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or Agreement, under any other Transaction Document, Document or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each caseLiquidity Agreement, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Administrative Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) 10 days after such demand; provided, provided that the amounts payable under this Section 5.1 2.10 shall be without duplication of amounts payable under Section 4.32.11 and shall not include any Excluded Taxes.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Administrative Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction. For the avoidance of doubt, any increase in cost and/or reduction in Yield with respect to any Affected Party caused by regulatory capital allocation adjustments due to FAS 166, 167 and subsequent statements and interpretations shall constitute a circumstance on which such Affected Party may base a claim for reimbursement under this Section 2.10.
(c) If an as a result of any event or circumstance similar to those described in clause (a) or (b) of this Section 2.10, any Affected Person shall at any time (without regard Party is required to whether any Basel III Regulations compensate a bank or Xxxx-Xxxxx Regulations are then in effect) suffer other financial institution providing liquidity support, credit enhancement or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding other similar support to such Affected Person or any of its Affiliates is required or expected to maintain Party in connection with this Agreement or the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment funding or maintenance of a reserve of stable fundingAdvances hereunder, a reduction in the amount of any sum received or receivable then within ten days after demand by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the AgentParty, the Borrower shall pay to the Agent, for the benefit of such Affected Person, Party such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the additional amount or amounts as may be necessary to compensate the reimburse such Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible Party for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letteramounts payable or paid by it.
(d) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect Failure or delay on the part of any Affected Party to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any demand compensation pursuant to this Section 5.1 to the extent 2.10 shall not constitute a waiver of such Affected Person is not imposing Party’s right to demand or receive such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)compensation.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Solar Capital Ltd.), Loan and Servicing Agreement (Solar Capital Ltd.)
Increased Costs Capital Adequacy. Subject to the provisions of Section 2.20 (awhich shall be controlling with respect to the Tax matters), in the event that any Lender (which term shall include Issuing Bank for purposes of this Section 2.19) Ifshall reasonably determine (which determination shall, due to either (iabsent demonstrable error, be final and conclusive and binding upon all parties hereto) the introduction of that any law, treaty or governmental rule, regulation or order, or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in therein or in the interpretation, administration or application arising following thereof (including the date hereof introduction of any Applicable Lawnew law, treaty or governmental rule, regulation or order), or any determination of a court or governmental authority, in each case whether foreign that becomes effective after the date hereof, or domestic or (ii) the compliance by such Lender with any guideline guideline, request or request following directive issued or made after the date hereof from by any central bank or other Official Body governmental or quasi-governmental authority (whether or not having the force of law): (a) imposes, modifies or holds applicable any reserve (including any marginal, emergency, supplemental, special or other reserve), special deposit, compulsory loan, FDIC insurance or similar requirement against assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or other credit (Aincluding letters of credit) there shall be extended by, or any other acquisition of funds by, any office of such Lender (other than any such reserve or other requirements with respect to Eurodollar Rate Loans that are reflected in the definition of Adjusted Eurodollar Rate); or (b) imposes any other condition (other than with respect to a Tax matter) on or affecting such Lender (or its applicable lending office) or its obligations hereunder or the London interbank market; and the result of any of the foregoing is to increase in the cost to the Agent, any such Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or makingmake, funding making or maintaining Loans hereunder or to reduce any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or such Lender (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable applicable lending office) with respect thereto, ; then, in each any such case, Company shall promptly pay to such Lender, upon receipt of the Borrower shallstatement referred to in the next sentence, from time such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its reasonable discretion shall determine) as may be necessary to timecompensate such Lender for any such increased cost or reduction in amounts received or receivable hereunder. Such Lender shall deliver to Company (with a copy to Administrative Agent) a written statement, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to calculating the Agent, on behalf of such Affected Person, additional amounts sufficient owed to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable Lender under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation2.19, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverage), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive and binding upon all parties hereto absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest demonstrable error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Simmons Co), Credit and Guaranty Agreement (Simmons Bedding Co)
Increased Costs Capital Adequacy. (a) If, due to either If (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof interpretation of any Applicable Lawlaw or regulation, in each case whether foreign or domestic or (ii) the compliance by an Affected Party with any guideline or request following the date hereof from any central bank or other Official Body Governmental Authority (whether or not having the force of law), or (iii) without limiting the generality of the foregoing, any Specified Change in Law, in any of the foregoing cases, shall (A) there shall be subject an Affected Party to any increase in Tax (except for Taxes on the cost overall net income of such Affected Party imposed on it by the jurisdiction under the laws of which such Affected Party is organized), duty or other charge with respect to the AgentAdvance made by it hereunder, or any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing right to make the Funding hereunder, or making, funding or maintaining any Loan (or any reduction of the amount of on any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person made hereunder), as the case may be, (B) there shall be impose, modify or deem applicable any reduction reserve requirement (including, without limitation, any reserve requirement imposed by the Board of Governors of the Federal Reserve System, but excluding any reserve requirement, if any, included in the determination of Interest), special deposit or similar requirement against assets of, deposits with or for the amount of, or credit extended by, any Affected Party or (C) impose any other condition affecting the Advance made by it hereunder or the Lender’s rights hereunder, the result of which is to increase the cost to any Affected Party or to reduce the amount of any sum received or receivable by an Affected Person Party under this Agreement or under any other Transaction DocumentAgreement, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, then within ten days after written demand by the Agent such Affected Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of the Borrower shall pay directly to such Affected Person, pay to the Agent, on behalf of Party such Affected Person, additional amount or amounts sufficient to as will compensate such Affected Person Party for such additional or increased costs cost incurred or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3reduction suffered.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof interpretation of any law, guideline, rule or rule, regulation, directive or request or request, (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body bank or agencyother governmental authority or agency (whether or not having the force of law), including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy adequacy, or liquidity coverage(iii) without limiting the generality of the foregoing, any Specified Change in Law, in any of the foregoing cases, has or would have the effect of reducing the rate of return on the capital of any Affected Person, Party as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverage), adequacy) by an amount deemed by such Affected Person Party to be material, then, then from time to time, within ten days after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of directly to such Affected Person Party such additional amount or amounts as will compensate such Affected Person Party for such reduction. For avoidance of doubt, any interpretation of Accounting Research Bulletin No. 51 by the Financial Accounting Standards Board shall constitute an adoption, change, request or directive subject to this subsection 2.13(b).
(c) If an as a result of any event or circumstance similar to those described in clauses (a) or (b) of this section, any Affected Person shall at any time (without regard Party is required to whether any Basel III Regulations compensate a bank or Xxxx-Xxxxx Regulations are then in effect) suffer other financial institution providing liquidity support, credit enhancement or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding other similar support to such Affected Person or any of its Affiliates is required or expected to maintain Party in connection with this Agreement or the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment funding or maintenance of a reserve of stable fundingthe Advance hereunder, a reduction in the amount of any sum received or receivable then within ten days after demand by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the AgentParty, the Borrower shall pay to the Agent, for the benefit of such Affected Person, Party such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the additional amount or amounts as may be necessary to compensate the reimburse such Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible Party for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letteramounts payable or paid by it.
(d) In determining any amount provided for in this Section 5.1section, the Affected Person Party may use any reasonable averaging and attribution methods. The Agent, on behalf of any Any Affected Person Party making a claim under this Section 5.1, section shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of written description as to such additional or increased costscost or reduction and the calculation thereof, which certificate written description shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 2 contracts
Samples: Loan and Security Agreement (Credit Acceptance Corp), Loan and Security Agreement (Credit Acceptance Corp)
Increased Costs Capital Adequacy. (a) If, due to either (i) If after the introduction date of this Agreement the adoption of or any change following the date hereof (including, without limitation, in any change by way of imposition law or increase of reserve requirements) in regulation or in the interpretation, administration interpretation or application arising following the date hereof of thereof by any Applicable Law, in each case whether foreign Governmental Authority or domestic application thereof or (ii) the compliance by any Bank with any guideline request or request following the date hereof from any central bank or other Official Body directive (whether or not having the force of law)) from any central bank or other Governmental Authority made subsequent to the date of this Agreement:
(i) shall subject any Bank to any tax of any kind whatsoever with respect to this Agreement, any Note, any other Loan Document, or any LIBOR Rate Loan made by it, or change the basis of taxation of payments to such Bank in respect thereof (except for (A) there shall be any increase in the cost to the Agent, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may beTaxes covered by Section 5.3, (B) there shall be any reduction in net income taxes and franchise taxes imposed on such Bank as a result of a present or former connection between the amount jurisdiction of any sum the government or taxing authority imposing such tax and such Bank other than a connection arising solely from such Bank having executed, delivered or performed its obligations or received a payment under, or receivable by an Affected Person under enforced, this Agreement or under any other Transaction Document, or the Loans and (C) changes in the rate of tax on the overall net income of such Bank);
(ii) shall impose, modify or hold applicable any Recipient is subject to any Taxes (reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loansliabilities in or for the account of, loan principaladvances, letters loans or other extensions of credit, commitmentscredit by, or any other obligationsacquisition of funds by, any office of such Bank that is not otherwise included in the determination of the LIBOR Rate hereunder (except for amounts covered by Section 4.4 or its depositsany other Section hereof); or
(iii) shall impose on such Bank any other condition;
(a) from the Borrower, reservesit shall promptly notify the Borrower, other liabilities or capital attributable theretothrough the Administrative Agent, then, of the event by reason of which it has become so entitled in each case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting manner set forth in reasonable detail the basis for such demandSection 5.7(b), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) any Bank determines in good faith that the introduction of or any change following the date hereof in or in the interpretation, administration interpretation or application arising following by any Governmental Authority of any law or regulation regarding capital adequacy after the date hereof of this Agreement or compliance by such Bank or any law, guideline, rule corporation controlling such Bank with any law or regulation, directive regulation or any guideline or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body bank or agency, including, without limitation, compliance by an Affected Person with any request other Governmental Authority (whether or directive regarding capital adequacy not having the force of law) made or liquidity coverage, has issued after the date of this Agreement does or would shall have the effect effect, as a result of such Bank's obligations under this Agreement, of reducing the rate of return on the such Bank's or such corporation's capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Bank or such corporation could have achieved but for such introduction, change or compliance (taking into consideration the such Bank's or such corporation's policies of such Affected Person with respect to capital adequacy and liquidity coverage), adequacy) by an amount deemed by such Affected Person Bank to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, Administrative Agent for the benefit account of such Affected PersonBank, from time to time as specified by such amount as will, Bank in the determination manner set forth in Section 5.7(b), additional amounts, computed by such Bank in accordance with Section 5.7(a), sufficient to compensate such Bank or such corporation in the light of such Affected Personcircumstances, compensate to the extent that such Affected Person therefor. A certificate Bank reasonably determines such reduction in rate of return is allocable to the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under existence of such Bank's obligations hereunder.
(c) The agreements contained in this Section 5.1(c) 5.1 shall be delivered to survive the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes termination of this Section 5.1(c), regardless Agreement and the payment of the date enacted, adopted, issued or implementedall amounts payable hereunder; provided, however, that in no event shall the Borrower shall not be responsible obligated to reimburse or compensate any Bank for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under amounts contemplated by this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 period prior to the date that is 90 days prior to the date that upon which such Affected Person notifies the Borrower of the event that gives rise to Bank requests in writing such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges reimbursement or compensation on other borrowers similarly situated to from the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Centerpoint Energy Inc), Credit Agreement (Centerpoint Energy Houston Electric LLC)
Increased Costs Capital Adequacy. (a) If, due to either (i) on or after the introduction Effective Date, the adoption of any law or any change following the date hereof (includinggovernmental or quasi-governmental rule, without limitationregulation, any change by way of imposition or increase of reserve requirements) in or in the interpretationpolicy, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body directive (whether or not having the force of law), or any change in the interpretation, promulgation, implementation or administration thereof by any governmental or quasi- governmental authority, central bank or comparable agency charged with the interpretation or administration thereof including, notwithstanding the foregoing, all requests, rules, guidelines or directives in connection with Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, or promulgated by the Bank for International Settlements, the Basel Committee on Banking Regulations and Supervisory Practices (Aor any successor or similar authority) there shall be pursuant to Basel III or any successor Basel accord regardless of the date enacted, adopted or issued, or compliance by the Lender with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency:
(i) imposes or increases or deems applicable any reserve, assessment, insurance charge, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by the Lender, or
(ii) imposes any other condition the result of which is to increase in the cost to the AgentLender with respect to this Agreement, the Note or its making, maintenance or funding of the Loans or any security therefor, or reduces any amount receivable by the Lender Agentwith respect to this Agreement, the Note, or the making, maintenance or funding of the Loans, or requires the Lender to make any payment calculated by reference to any amount received with respect to this Agreement, the Note, or the making, maintenance or funding of the Loans, by an amount deemed material by the Lender, successor and the result of any of the foregoing is to increase the cost to the Lender with respect to this Agreement, the Note, or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or the making, maintenance or funding or maintaining any Loan (or any reduction of the amount Loans or of any payment (whether of principal, interest, fee, compensation participating the same or otherwise) to any Affected Person hereunder)reduce the return received by the Lender, as the case may be, (B) there shall be any reduction in connection with the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable theretosame, then, in each case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Agentextent permitted by Applicable Law, such additional amount or amounts may be funded from funds then available in the Revenue Fund after the payment of debt service on behalf the Loans in any year for the purpose of such Affected Person, additional amounts sufficient to compensate such Affected Person compensating the Lender for such increased costs cost or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3reduction in amount received.
(b) If either (i) the introduction Lender reasonably determines the amount of capital or liquidity required or expected to be maintained by the Lender or any change following corporation controlling the date hereof in or Lender is increased as a result of a Change (as hereinafter defined), then, within fifteen (15) days of demand by the Lender, to the extent permitted by Applicable Law: first, funds available in the interpretationRevenue Fund after the payment of debt service on the Loans in any year; and second, administration or application arising following funds available in the date hereof of Surplus Fund to the extent funds in the Surplus Fund are not needed in any law, guideline, rule or regulation, directive or request or (ii) year to make debt service payments on the compliance by Loans may be used to pay the Lender the amount necessary to compensate for any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing shortfall in the rate of return on the portion of such increased capital of any Affected Personor liquidity which the Lender determines is attributable to this Agreement or the Note, as a consequence of its obligations the case may be, hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (after taking into consideration account the Lender’s policies of such Affected Person with respect as to capital adequacy and or liquidity coverageadequacy), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur . “Change” means (i) any explicit or implicit charge, assessment, cost or expense by reason change after the date of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction this Agreement in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise Risk-Based Capital Guidelines or (ii) any adoption of or change in any other imputed cost law, governmental or expense arising quasi-governmental rule, regulation, policy, guideline, interpretation, or directive (whether or not having the force of law) or in the interpretation, promulgation, implementation or administration thereof after the date of this Agreement which affects the amount of capital or liquidity required or expected to be maintained by reason of the actual or anticipated compliance by such Affected Person Lender or any of its Affiliates with corporation controlling the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through Lender. Notwithstanding the Agent, the Borrower shall pay to the Agentforegoing, for the benefit purposes of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained hereinAgreement, all requests, rules, guidelines, requirements and guidelines or directives promulgated in connection with the Retention Requirements shall, in each case, Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act shall be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), Change regardless of the date enacted, adopted or issued and all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority) pursuant to Basel III or any successor Basel accord or the United States financial regulatory authorities shall be deemed to be a Change regardless of the date adopted, issued issued, promulgated or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 2 contracts
Samples: Consent, Assignment and Sale Agreement
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof Closing Date (including, without limitation, any change by way of imposition or increase of reserve or liquidity requirements) in or in the interpretation, administration or application arising following the date hereof Closing Date of any Applicable LawLaw (including, without limitation, any law or regulation resulting in any interest payments paid to any Lender under this Agreement being subject to any Tax, except for Taxes on the overall net income of such Lender), in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof Closing Date from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) there shall be any increase in the cost to the Administrative Agent, any Lender, any Lender Agent, any LenderLiquidity Bank or any Affiliate, participant, successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) or there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or Agreement, under any other Transaction Document, Document or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each caseLiquidity Agreement, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Administrative Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) days after such demandon the immediately following Payment Date pursuant to Section 2.04; provided, that the amounts payable under this Section 5.1 2.10 shall be without duplication of amounts payable under Section 4.32.11 and shall not include any Excluded Taxes.
(b) If either (i) the introduction of or any change following the date hereof Closing Date in or in the interpretation, administration or application arising following the date hereof Closing Date of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereofClosing Date, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageliquidity, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Administrative Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction.
(c) If an Affected Person shall at any time (without regard reduction on the immediately following Payment Date pursuant to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur Section 2.04. For the avoidance of doubt, (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or interDxxx-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower Fxxxx Xxxx Street Reform and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, Consumer Protection Act and all requests, rules, guidelinesguidelines or directives thereunder or issued in connection therewith and (ii) all requests, requirements and rules, guidelines or directives promulgated in connection with by the Retention Requirements shallBank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case, be deemed case pursuant to be Basel III shall constitute a change or adoption of any law, rule or regulation circumstance on which such Affected Party may base a claim for purposes of reimbursement under this Section 5.1(c)2.10, regardless of the date enacted, adoptedadopted or issued.
(c) If as a result of any event or circumstance similar to those described in clause (a) or (b) of this Section 2.10, issued any Affected Party is required to compensate a bank or implemented; providedother financial institution providing liquidity support, howevercredit enhancement or other similar support to such Affected Party in connection with this Agreement or the funding or maintenance of Advances hereunder, that then within ten days after demand by such Affected Party, the Borrower shall not pay to such Affected Party on the immediately following Payment Date pursuant to Section 2.04 such additional amount or amounts as may be responsible necessary to reimburse such Affected Party for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letteramounts payable or paid by it.
(d) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect Failure or delay on the part of any Affected Party to any claim for demand compensation under pursuant to this Section 5.1 2.10 shall not constitute a waiver of such Affected Party’s right to demand or receive such compensation; provided that the Borrower shall not be required to compensate such Affected Person Party pursuant to this Section 2.10 for any amount increased costs incurred or reductions suffered more than 180 days nine months prior to the date that such Affected Person Party notifies the Borrower of the event that gives any change set forth in clauses (a) and (b) above giving rise to such claimincreased costs or reductions and of such Affected Party’s intention to claim compensation therefor (except that, if such change giving rise to such increased costs or reductions is retroactive, then the nine month period referred to above shall be extended to include the period of retroactive effect thereof).
(f) An Affected Person If at any time the Borrower shall not be entitled liable for the payment of any additional amounts in accordance with this Section 2.10, then the Borrower shall have the option to terminate this Agreement (in accordance with the provisions of Section 2.18(b) but without the payment of any compensation Make-Whole Premium); provided that such option to terminate shall in no event relieve the Borrower of paying any amounts owing pursuant to this Section 5.1 to 2.10 in accordance with the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)terms hereof.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.), Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof Closing Date (including, without limitation, any change by way of imposition or increase of reserve (including pursuant to regulations issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency, special, supplemental or other marginal reserve requirement) with respect to eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D)) or liquidity requirements) in or in the interpretation, administration or application arising following the date hereof Closing Date of any Applicable LawLaw (including, without limitation, any law or regulation resulting in any loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto of any Lender being subject to any Tax (other than (A) Indemnified Taxes and (B) Excluded Taxes)), in each case whether foreign or domestic or (ii) the compliance by an Affected Party with any guideline or request following the date hereof Closing Date from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) there shall be any increase in the cost (other than Taxes) to the Administrative Agent, any Lender Agentor any Affiliate, participant thereof (provided that a participant shall not be entitled to receive any Lendergreater payment under this Section 2.10 than the Lender would have been entitled to receive with respect to the participation sold to such participant), successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) or there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or under Agreement, any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Administrative Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) days after such demand; provided, that in accordance with the amounts payable under this priority of payments set forth in Section 5.1 shall be without duplication of amounts payable under Section 4.32.04.
(b) If either (i) the introduction of or any change following the date hereof Closing Date in or in the interpretation, administration or application arising following the date hereof Closing Date of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereofClosing Date, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageliquidity, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageor liquidity), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Administrative Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction.
reduction in accordance with the priority of payments set forth in Section 2.04. For the avoidance of doubt, (ci) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or the Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower Xxxx Street Reform and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, Consumer Protection Act and all requests, rules, guidelinesguidelines or directives thereunder or issued in connection therewith and (ii) all requests, requirements and rules, guidelines or directives promulgated in connection with by the Retention Requirements shallBank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case, be deemed case pursuant to be Basel III shall constitute a change or adoption of any law, rule or regulation circumstance on which such Affected Party may base a claim for purposes of reimbursement under this Section 5.1(c)2.10, regardless of the date enacted, adoptedadopted or issued.
(c) If as a result of any event or circumstance similar to those described in clause (a) or (b) of this Section 2.10, issued any Affected Party is required to compensate a bank or implemented; providedother financial institution providing liquidity support, howevercredit enhancement or other similar support to such Affected Party in connection with this Agreement or the funding or maintenance of Advances hereunder, that then after demand by such Affected Party, the Borrower shall not pay to such Affected Party such additional amount or amounts as may be responsible necessary to reimburse such Affected Party for any increased costs relating to the Retention Requirements so long as the Retention Holder is amounts payable or paid by it in compliance accordance with the requirements priority of payments set forth in the Retention LetterSection 2.04.
(d) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest demonstrable error.
(e) With respect Failure or delay on the part of any Affected Party to any claim for demand compensation under pursuant to this Section 5.1 2.10 shall not constitute a waiver of such Affected Party’s right to demand or receive such compensation; provided that the Borrower shall not be required to compensate such Affected Person a Lender pursuant to this Section for any amount increased costs incurred or reductions suffered more than 180 days nine months prior to the date that such Affected Person Lender notifies the Borrower of the event that gives change in Applicable Law giving rise to such claimincreased costs or reductions, and of such Lender’s intention to claim compensation therefor (except that, if the change in Applicable Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).
(f) An Affected Person shall not be entitled Notwithstanding anything to any compensation pursuant to the contrary in this Section 5.1 2.10, the Borrower shall only be liable for any amount provided for in this Section 2.10, if each Lender certifies in writing to the extent Borrower that such Affected Person Lender is not imposing generally requiring payment of such charges or compensation on amounts from other borrowers that are similarly situated to the Borrower. Moreover, if at any time the Borrower hereunder under comparable credit facilities shall be liable for the payment of any amount provided for in this Section 2.10, then the Borrower shall have the option to terminate this Agreement (it being understood that in accordance with the amount provisions of Section 2.18(b)), and the Borrower shall not be required to pay the Make-Whole Premium in connection with such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)termination.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Oaktree Strategic Credit Fund), Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof Fifth Amendment Effective Date (or, with respect to the Agent (so long as WFS is the Agent) and Xxxxx Fargo, the Restatement Date) (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof Fifth Amendment Effective Date (or, with respect to the Agent (so long as WFS is the Agent) and Xxxxx Fargo, the Restatement Date) of any Applicable LawLaw (including, without limitation, any law or regulation resulting in any interest payments paid to any Lender under this Agreement being subject to any Tax, except for Taxes on the overall net income of such Lender), in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof Fifth Amendment Effective Date (or, with respect to the Agent (so long as WFS is the Agent) and Xxxxx Fargo, the Restatement Date) from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) there shall be any increase in the cost to the Agent, any Lender, or any Affiliate, participant (provided that a participant shall not be entitled to receive any greater payment under this Section 2.10 than the Lender Agent, any Lenderwould have been entitled to receive with respect to the participation sold to such participant), successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) 10 days after such demand; provided, provided that the amounts payable under this Section 5.1 2.10 shall be without duplication of amounts payable under Section 4.32.11 and shall not include any Excluded Taxes.
(b) If either (i) the introduction of or any change following the date hereof Fifth Amendment Effective Date (or, with respect to the Agent (so long as WFS is the Agent) and Xxxxx Fargo, the Restatement Date) in or in the interpretation, administration or application arising following the date hereof Fifth Amendment Effective Date (or, with respect to the Agent (so long as WFS is the Agent) and Xxxxx Fargo, the Restatement Date) of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereofFifth Amendment Effective Date (or, with respect to the Agent (so long as WFS is the Agent) and Xxxxx Fargo, the Restatement Date), from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction.
; provided that, notwithstanding anything in this Section 2.10(b) to the contrary, (cx) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or the Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower Xxxx Street Reform and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, Consumer Protection Act and all requests, rules, guidelinesguidelines or directives thereunder or issued in connection therewith and (y) all requests, requirements and rules, guidelines or directives promulgated in connection with by the Retention Requirements shallBank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each casecase pursuant to Basel III, shall in each case be deemed to be a “change or adoption of any in law, rule or regulation ” for the purposes of this Section 5.1(c)clause (i) above, regardless of the date enacted, adoptedadopted or issued. For the avoidance of doubt, issued if the issuance of any amendment or implemented; providedsupplement to Interpretation No. 46 or to Statement of Financial Accounting Standards No. 140 by the Financial Accounting Standards Board, howeveror the issuance of any other pronouncement, that release or interpretation, causes or requires the consolidation of all or a portion of the assets and liabilities of the Transferor, the Borrower shall not be responsible for or any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance Secured Party with the requirements set forth assets and liabilities of the Agent or any Lender and, as a result, imposes any loss, cost, expense, reduction of return on capital or other loss, such event shall constitute a circumstance on which such Indemnified Party may base a claim for reimbursement under this Section 2.10. For the further avoidance of doubt, any increase in the Retention Lettercost and/or reduction in Yield with respect to any Affected Party caused by regulatory capital allocation adjustments due to Financial Accounting Standards Nos. 166, 167 and subsequent statements and interpretations shall constitute a circumstance on which such Affected Party may base a claim for reimbursement under this Section 2.10.
(dc) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(ed) With respect to any claim for compensation The payment of amounts under this Section 5.1 the Borrower 2.10 shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claimon an after Tax basis.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 2 contracts
Samples: Omnibus Amendment (Ares Capital Corp), Sale and Servicing Agreement (Ares Capital Corp)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost to the Facility Agent, any Lender Agent, any Lender, or any successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1x) Indemnified Taxes, (y) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (2z) Excluded Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Facility Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demandpursuant to Section 5.1(d), on behalf of such Affected Person, pay to the Facility Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverageliquidity, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demandpursuant to Section 5.1(d), the Borrower shall pay the Facility Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reductionreduction but only to the extent there are amounts available therefore on any given day pursuant to Section 8.3(a).
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise otherwise, or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the AgentFacility Agent pursuant to Section 5.1(d), the Borrower shall pay to the Facility Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered therefor but only to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything extent that there are amounts available therefor on any given day pursuant to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c8.3(a), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Facility Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive evidence of such amount absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 2 contracts
Samples: Loan Financing and Servicing Agreement (Owl Rock Capital Corp), Loan Financing and Servicing Agreement (Owl Rock Capital Corp)
Increased Costs Capital Adequacy. (a) IfIf after the Closing Date, due to either (i) any Lender, the introduction of Agent, any Funding Source or any change following of their respective Affiliates (each an “Affected Party”) shall be charged or shall incur any fee, expense, increased reserve requirement or other increased cost on account of the date hereof adoption or implementation of any applicable law, rule or regulation or any accounting principle (including, without limitation, any applicable law, rule or regulation or accounting principle regarding or affecting capital adequacy) or any change by way of imposition therein, or increase of reserve requirements) in or any change in the interpretationinterpretation or administration thereof by any Governmental Authority or accounting body charged with the interpretation or administration thereof, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline request or request following the date hereof from any central bank or other Official Body directive (whether or not having the force of law)) of any such Governmental Authority or accounting body (a “Regulatory Change”): (i) which subjects any Affected Party to any charge or withholding on or with respect to any Funding Agreement or an Affected Party’s obligations under a Funding Agreement, or on or with respect to the Assets, or changes the basis of taxation of payments to any Affected Party of any amounts payable under any Funding Agreement (Aexcept for changes in the rate of tax on the overall net income of an Affected Party) there shall be or (ii) which imposes, modifies or deems applicable any reserve, assessment, fee, tax, insurance charge, special deposit or similar requirement against assets of, deposits with or for the account of an Affected Party, or credit extended by an Affected Party pursuant to a Funding Agreement or (iii) which imposes any other condition the result of which is to increase in the cost to an Affected Party of performing its obligations under a Funding Agreement, or to reduce the Agentrate of return on an Affected Party’s capital as a consequence of its obligations under a Funding Agreement, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in reduce the amount of any sum received or receivable by an Affected Person Party under this a Funding Agreement or under to require any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand payment calculated by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverage), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum interests or loans held or interest received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulationsit, then, upon demand by or on behalf the Agent by the submission of such Affected Person through the Agentcertificate described below, the Borrower shall pay to the Agent, for the benefit of such the relevant Affected PersonParty, such amount amounts as will, in the determination of such Affected Person, are necessary to compensate such Affected Person thereforParty for such increased cost, reduction or payment. A certificate of from the applicable relevant Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate Party setting forth in reasonable detail the basis for and amounts so required to compensate such Affected Party submitted to the computations of such additional or increased costs, which certificate Borrower shall be conclusive and binding for all purposes, absent manifest error.
(eb) With respect to [Reserved].
(c) If any claim for Affected Party requests compensation under this Section 5.1 2.10, or the Borrower shall not be are required to compensate such Affected Person for pay any additional amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation Lender, any Funding Source or any Governmental Authority for the account of such Lender or Funding Source pursuant to Section 2.11 or if the Agent gives a notice pursuant to Section 2.10(b), then such Lender or such Funding Source shall use reasonable efforts to designate a different lending office for funding or booking its Advances hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender or such Funding Source, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to this Section 5.1 2.10 or Section 2.11, as the case may be, in the future, or eliminate the need for the notice pursuant to the extent Section 2.10(b), as applicable, and (ii) in each case, would not subject such Affected Person is Lender or such Funding Source to any unreimbursed cost or expense and would not imposing otherwise be disadvantageous to such charges Lender or compensation on other borrowers similarly situated such Funding Source. The Borrower hereby agree to the Borrower hereunder under comparable credit facilities (it being understood that the amount of pay all reasonable costs and expenses incurred by such additional Lender or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)such Funding Source in connection with any such designation or assignment.
Appears in 2 contracts
Samples: Credit and Security Agreement (GWG Holdings, Inc.), Credit and Security Agreement (GWG Holdings, Inc.)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following (in each case occurring after the date hereof (initial Borrowing Date, and including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof interpretation of any Applicable Lawlaw or regulation (including, without limitation, any law or regulation resulting in any interest payments paid to a Lender under this Agreement being subject to United States withholding tax) or any guideline of any accounting board or authority (whether or not a part of government) which is responsible for the establishment or interpretation of national or international accounting principles, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body governmental authority (whether or not having the force of law), (A) there shall be any increase in the cost to any of the Agent, any Lender Agent, any following:
(A) the Lender, successor (B) DZ BANK, or assign thereof (each C) any Affiliate of which shall either that, by virtue of its relationship with the Lender or DZ BANK for any regulatory or financial accounting or reporting purposes, assessment or allocation of capital costs, reserve costs, tax costs or otherwise, would be subjected to an increased cost payable under this Section 2.13 as a result of the existence of this Agreement or the Loans, or agreements, facilities or loans generally of this type (it being understood that any such costs may be assessed only on behalf of the applicable Affected Party actually bearing such cost, without duplication) (any, an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after upon written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay Party (with a copy to the Agent), on behalf of immediately pay to such Affected PersonParty (as a third party beneficiary, in the case of an Affected Party that is not also the Lender hereunder), additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3payments.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof interpretation of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body bank or agencyother governmental authority or agency (whether or not having the force of law), including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, within ten days after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for of such demand), the Borrower shall pay the Agent on behalf of such Affected Person Party shall be paid (from Collections pursuant to, and subject to the priority of payment set forth in, Section 2.05) such additional amounts as will compensate such Affected Person Party for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.12.13, the Affected Person Party may use any reasonable averaging and attribution methods. The Agent, on behalf of any Any Affected Person Party making a claim under this Section 5.1, 2.13 shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest demonstrable error.
(d) Each Affected Party, as applicable, shall promptly (and in any event by the later of (i) thirty (30) Business Days before the commencement of accrual of any amounts to be paid by the Borrower under this Section 2.13, and (ii) the date on which an officer responsible for the transaction hereunder of the Agent or the requesting Affected Party has actual knowledge of an increased cost resulting from such regulatory change or imposition), notify the Borrower and Agent of any event of which it has knowledge which will entitle such Affected Party to compensation pursuant to this Section 2.13, provided, that no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation except to the extent such delay in giving notice has resulted in an increase in the amount of compensation that would otherwise have been payable had timely noticed been delivered, and no such failure shall constitute the basis for any other adverse claim against the applicable Affected Party.
(e) With respect If, as a result of any event or circumstance similar to those described in Section 2.13(a) or 2.13(b), any claim for compensation under Affected Party (that is an Issuer) is required to compensate a bank or other financial institution providing liquidity support, credit enhancement or other similar support to such Affected Party in connection with this Section 5.1 Agreement, then, upon demand by such Affected Party, the Borrower shall not be required pay to compensate such Affected Person Party such additional amount or amounts as may be necessary to reimburse such Affected Party for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claimamounts paid by it.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 2 contracts
Samples: Receivables Loan and Security Agreement (Mru Holdings Inc), Receivables Loan and Security Agreement (Mru Holdings Inc)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable LawLaw (including, without limitation, any law or regulation resulting in any interest payments paid to any Lender under this Agreement being subject to any Tax), in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body Governmental Authority (whether or not having the force of law), ): (Ax) there shall be any increase in the cost to the Administrative Agent, any Lender, any Lender Agent, any LenderLiquidity Bank or any Affiliate, participant (provided that a participant shall not be entitled to receive any greater payment under this Section 2.10 than the Lender would have been entitled to receive with respect to the participation sold to such participant except to the extent provided in Section 11.04(d)), successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, ; (By) there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or Agreement, under any other Transaction Document, Document or any Liquidity Agreement; or (Cz) any Recipient is Affected Party shall be subject to any Taxes (other than (1A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (2C) Excluded Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, then the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Administrative Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) 10 days after such demand; provided, provided that the amounts payable under this Section 5.1 2.10 shall be without duplication of amounts payable under Section 4.32.11. If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Party with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Governmental Authority or agency, including, without limitation, compliance by an Affected Party with any request or directive regarding capital adequacy, but, in each case, excluding Taxes, has or would have the effect of reducing the rate of return on the capital of any Affected Party, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Party with respect to capital adequacy), by an amount deemed by such Affected Party to be material, then, from time to time, after demand by such Affected Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Administrative Agent on behalf of such Affected Party such additional amounts as will compensate such Affected Party for such reduction. For the avoidance of doubt, any increase in cost and/or reduction in Yield with respect to any Affected Party caused by regulatory capital allocation adjustments due to FAS 166, 167 and subsequent statements and interpretations shall constitute a circumstance on which such Affected Party may base a claim for reimbursement under this Section 2.10; provided that, for the avoidance of doubt, the amounts payable under this clause (a) shall be without duplication of amounts payable under Article XI and shall not include Indemnified Taxes.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageadequacy, but, in each case, excluding Taxes, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Administrative Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction. For the avoidance of doubt, any increase in cost and/or reduction in Yield with respect to any Affected Party caused by regulatory capital allocation adjustments due to FAS 166, 167 and subsequent statements and interpretations shall constitute a circumstance on which such Affected Party may base a claim for reimbursement under this Section 2.10.
(c) If an as a result of any event or circumstance similar to those described in clause (a) or (b) of this Section 2.10, any Affected Person shall at any time (without regard Party is required to whether any Basel III Regulations compensate a bank or Xxxx-Xxxxx Regulations are then in effect) suffer other financial institution providing liquidity support, credit enhancement or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding other similar support to such Affected Person or any of its Affiliates is required or expected to maintain Party in connection with this Agreement or the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment funding or maintenance of a reserve of stable fundingAdvances hereunder, a reduction in the amount of any sum received or receivable then within ten days after demand by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the AgentParty, the Borrower shall pay to the Agent, for the benefit of such Affected Person, Party such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the additional amount or amounts as may be necessary to compensate the reimburse such Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible Party for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letteramounts payable or paid by it.
(d) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With Failure or delay on the part of any Affected Party to demand compensation pursuant to this Section 2.10 shall not constitute a waiver of such Affected Party’s right to demand or receive such compensation.
(f) Notwithstanding anything herein to the contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all rules and regulations promulgated thereunder or issued in connection therewith and (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to have been introduced after the Closing Date, thereby constituting a change for which a claim for increased costs or additional amounts may be made hereunder with respect to the Affected Parties, regardless of the date enacted, adopted or issued.
(g) If at any claim time the Borrower shall be liable for compensation the payment of any additional amounts in accordance with this Section 2.10, then the Borrower shall have the option, at its sole expense and effort, upon notice to the applicable Affected Party and the Administrative Agent, to require such Affected Party to assign and delegate in accordance with Section 11.04, all of its interests, rights and obligations under this Section 5.1 Agreement to an assignee that shall assume such obligations; provided that (i) the Borrower shall have received the prior written consent of the Administrative Agent and (ii) such Affected Party shall have received payment of an amount equal to all Obligations due and payable to such Affected Party. An Affected Party shall not be required to compensate make any such Affected Person for assignment and delegation if, prior thereto, it has waived any amount incurred more than 180 days prior amounts owed to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to it under this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)2.10.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Solar Capital Ltd.), Consent and Omnibus Amendment (Solar Capital Ltd.)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost to the Facility Agent, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Facility Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Facility Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) i. If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverage), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Facility Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) ii. If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise otherwise, or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Facility Agent, the Borrower shall pay to the Facility Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) iii. In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Facility Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 2 contracts
Samples: Loan Agreement (FS KKR Capital Corp), Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof (that did not exist prior to the date hereof) from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost (other than Taxes) to the Agent, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable (other than as a result of Taxes) by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demanddemand and confirmation from the Affected Person that such Affected Person is making similar demands from borrowers in loan arrangements that are similar in nature to this Agreement), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof (that did not exist prior to the date hereof), from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverage), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demanddemand and confirmation from the Affected Person that such Affected Person is making similar demands from borrowers in loan arrangements that are similar in nature to this Agreement), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise otherwise, or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Antares Strategic Credit Fund), Loan and Servicing Agreement (Antares Strategic Credit Fund)
Increased Costs Capital Adequacy. (a) If, due to either (i) on or after the introduction date of this Agreement, the adoption of any law or regulation, or any change following therein, or any change in the interpretation or administration thereof by any court, administrative or governmental authority, central bank or comparable agency charged with the interpretation or administration thereof or compliance by any Liquidity Bank with any request or directive issued after the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law)) of any such authority, central bank or comparable agency (A) there shall be any increase a “Change in the cost to the Agent, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected PersonLaw”) of agreeing to make shall either:
(i) impose, modify or makingdeem applicable any reserve, funding special deposit or maintaining any Loan similar requirement against (or against any reduction of the amount of any payment (whether of principalclass of, interest, fee, compensation a change in or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received of) assets or receivable by an Affected Person under this Agreement or under any other Transaction Documentliabilities of, or commitments or extensions of credit by, any Liquidity Bank;
(Cii) shall subject any Recipient is subject Liquidity Bank to any Taxes (other than (1A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (2C) Excluded Connection Income Taxes) with respect to any Liquidity Loan Obligation; or
(iii) impose on its loans, loan principal, letters of credit, commitments, or any Liquidity Bank any other obligations, condition regarding this Agreement or its depositsLiquidity Commitment, reservesand the result of any event referred to in clause (i)-(iii) above shall be to increase the cost to any Liquidity Bank of issuing or maintaining its Liquidity Commitment or its LIBOR Liquidity Loans (or, other liabilities in the case of (ii) above, any Liquidity Loans) or capital attributable theretoto reduce the amounts receivable by any Liquidity Bank hereunder (which increase in cost or reduction in amounts receivable shall be the result of any Liquidity Bank’s reasonable allocation of the aggregate of such cost increase or reductions resulting from such events), then, in each caseupon written demand by any Liquidity Bank, the Borrower BAFC shall, within ten (10) Business Days of receipt of such demand, be obligated to pay to such Liquidity Bank, from time to timetime as specified by such Liquidity Bank, after written demand by additional amounts which in the Agent (which demand aggregate shall be accompanied by sufficient to compensate such Liquidity Bank for such increased cost or reduction, together with interest on each such amount from the date demanded until payment in full thereof at a statement rate per annum equal to the lesser of (A) the Legal Rate or (B) ABR. A certificate setting forth in reasonable detail the basis for such demandincreased cost incurred or reduction in amounts receivable by any Liquidity Bank as a result of any event mentioned in clause (i), on behalf (ii) or (iii) of this subsection, submitted by any Liquidity Bank to BAFC, shall, unless otherwise required by law, be conclusive, absent manifest error, as to the amount thereof. Each Liquidity Bank shall give BAFC and the Administrative Agent notice, within a reasonable period of time of such Affected PersonLiquidity Bank having actual knowledge of the occurrence of any event that will entitle such Liquidity Bank to claim the payment of additional amounts under this subsection 4.05(a). Notwithstanding the foregoing, BAFC shall not be required to pay any Liquidity Bank, as applicable, such additional amounts to the Agent, on behalf of extent such Affected Person, additional amounts sufficient relate to compensate such Affected Person for such increased costs or reduced payments within thirty periods more than one hundred and eighty (30180) days after prior to the date of BAFC’s receipt of such demand; providedprovided that, that if such change in law giving rise to such increased cost or reduction is retroactive, then the amounts payable under this Section 5.1 one hundred and eighty (180) day period shall be without duplication extended to include the period of amounts payable under Section 4.3retroactive effect thereof.
(b) If either any of the events requiring payments of additional amounts by BAFC under subsection (ia) the introduction of occurs, each Liquidity Bank shall take such steps as may be reasonable to avoid BAFC being required to pay any additional amounts and shall consult with BAFC in good faith with a view to agreeing to alternative arrangements which would not subject such Liquidity Bank to any unreimbursed cost and would not otherwise be disadvantageous to such Liquidity Bank, whereby any such requirement can be avoided or mitigated, including without limitation, fulfilling any change following the date hereof in such Liquidity Bank’s obligations through another branch or in the interpretation, administration affiliate.
(c) If any Liquidity Bank shall have determined that on or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following after the date hereof, from the adoption of any applicable law, rule or regulation regarding capital adequacy or liquidity, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bankbank or comparable agency charged with the interpretation or administration thereof, any Official Body or agency, including, without limitation, compliance by an Affected Person any Liquidity Bank or any corporation controlling such Liquidity Bank with any request or directive regarding capital adequacy or liquidity coverage(whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the capital of any Affected Person, such Liquidity Bank or such corporation as a consequence of the Liquidity Commitment or its obligations hereunder or under any related document or arising in connection herewith or therewith participation agreement to a level below that which any such Affected Person Liquidity Bank or such corporation could have achieved but for such introductionadoption, change or compliance (taking into consideration the policies of such Affected Person Liquidity Bank or such corporation with respect to capital adequacy and liquidity coverage), or liquidity) by an amount deemed by such Affected Person Liquidity Bank to be material, then, then from time to time, within ten (10) Business Days after demand by such Affected Person (which demand Liquidity Bank, BAFC shall be accompanied by a statement setting forth in reasonable detail the basis for obligated to pay or cause to be paid to such demand), the Borrower shall pay the Agent on behalf of such Affected Person Liquidity Bank such additional amount or amounts as will compensate such Affected Person Liquidity Bank for such reduction. Each Liquidity Bank shall give BAFC and the Administrative Agent notice within a reasonable time of such Liquidity Bank having actual knowledge of the occurrence of any event that will entitle the Liquidity Bank to claim the payment of additional amounts under this subsection 4.05(c). Notwithstanding the foregoing, BAFC shall not be required to pay any Liquidity Bank, as applicable, such additional amounts to the extent such amounts relate to periods more than one hundred and eighty (180) days prior to the date of BAFC’s receipt of such demand; provided that, if such change in law giving rise to such reduction is retroactive, then the one hundred and eighty (180) day period shall be extended to include the period of retroactive effect thereof.
(cd) If an any Liquidity Bank on its own behalf makes a demand for amounts owed under this Section 4.05, BAFC shall have the right, if no event then exists which is or with the lapse of time or notice or both would be a Mandatory Liquidation Event, within ninety (90) days of the date of such demand, to remove such Liquidity Bank (the “Affected Person”) and to designate another lender (the “Replacement Person”) reasonably acceptable to the Administrative Agent and meeting the requirements of Section 11.05 hereof to purchase the Affected Person’s outstanding Liquidity Loans and to assume the Affected Person’s obligations under this Agreement; provided that increased costs incurred by such Liquidity Bank prior to the date of its replacement shall have been paid as provided in the previous paragraph; and provided further, that BAFC first receives confirmation from the Series 2000-1 Rating Agencies that such replacement will not result in the reduction or withdrawal of the rating of the Commercial Paper. The Affected Person agrees to sell to the Replacement Person its outstanding Liquidity Loans (at par, with accrued interest through the date of purchase, in immediately available funds) and to delegate to the Replacement Person its obligations to BAFC and its future obligations to the Administrative Agent under this Agreement. Upon such sale and delegation by the Affected Person and the purchase and assumption by the Replacement Person, and compliance with the provisions of Section 11.05 hereof, the Affected Person shall at cease to be a Liquidity Bank hereunder and the Replacement Person shall become a Liquidity Bank under this Agreement. Each Affected Person shall continue to be entitled to receive from BAFC its share of interest, fees, costs and other sums which have not been assigned by the Affected Person to the Replacement Person.
(e) Notwithstanding anything herein to the contrary (i) all requests, rules, guidelines, requirements and directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any time successor or similar authority) or by the United States or foreign regulatory authorities, in each case pursuant to Basel III, and (without regard to whether any Basel III Regulations or ii) the Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower Xxxx Street Reform and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, Consumer Protection Act and all requests, rules, guidelines, requirements and directives promulgated thereunder or issued in connection with the Retention Requirements shalltherewith or in implementation thereof, shall in each case, case be deemed to be a change or adoption in Requirements of any law, rule or regulation for purposes of this Section 5.1(c)Law, regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person Notwithstanding anything in this Agreement to the contrary, it is understood that any Participant shall not be entitled to any compensation pursuant to the payment of increased costs under this Section 5.1 4.05 and Section 4.06 hereof to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated increased costs would have been required to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)paid had no participating interest been sold.
Appears in 2 contracts
Samples: Liquidity Agreement (Bunge LTD), Liquidity Agreement (Bunge LTD)
Increased Costs Capital Adequacy. (a) If, due to either (i) Subject to the introduction provisions of Section 3(f)(v) below, Borrower shall promptly pay directly to each Lender such amounts as are reasonably necessary to compensate such Lender for any increase in costs which are attributable to such Lender’s making, maintaining or continuing of its Commitment or the loans evidenced by its Loan Certificates or funding arrangements utilized in connection with such loans, or any reduction in any amount receivable by such Lender hereunder in respect of any of its Commitments or under the Loan Certificates, such loans or such arrangements (such increases in costs and reductions in amounts receivable being herein called “Additional Costs”), applicable to the period commencing thirty (30) days prior to Lender’s notification thereof pursuant to Section 3(f)(iii) and resulting from the adoption of or any change following after the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in Law or in the interpretation, administration interpretation or application arising following the date hereof of thereof or compliance by any Applicable Law, in each case whether foreign or domestic or (ii) the compliance Lender with any guideline request or request following the date hereof from any central bank or other Official Body directive (whether or not having the force of law)Law but, (Aif not having the force of Law, is generally applied by Lender with respect to similar credits under similar circumstances) there shall be from any increase in the cost central bank or other Governmental Entity made subsequent to the Agentdate hereof:
(1) shall impose any tax that is the functional equivalent of any reserve, special deposit or similar requirement of the sort covered by clause (2) below; or
(2) shall impose or modify any reserve, special deposit, compulsory loan or similar requirements against assets held by, deposits or other liabilities in or for the account of advances, loans or other extensions of credit by, or any other acquisition of funds by, any Lender Agent, office of such Lender; or
(3) imposes any Lender, successor other condition affecting this Agreement or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any its Loan Certificates (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Agent, on behalf extensions of credit or liabilities) or any such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3obligation.
(bii) If either (i) Without duplication of any amounts payable by Borrower under Section 3(f)(i), if any Lender shall have determined, acting reasonably and in good faith, that after the introduction date hereof, the adoption of or any change following the date hereof in any Law regarding capital adequacy or in the interpretation, administration interpretation or application arising following the date hereof of any lawthereof, guideline, rule or regulation, directive or request or (ii) the compliance by such Lender or any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person corporation controlling such Lender with any request or directive regarding capital adequacy (whether or liquidity coveragenot having the force of Law but, has or would if not having the force of Law, is generally applied by such Lender with respect to similar credits under similar circumstances) from any Governmental Entity made subsequent to the date hereof, shall have the effect of reducing the rate of return on the such Lender’s or such corporation’s capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Lender or such corporation could have achieved but for such introductionadoption, change or compliance (taking into consideration the such Lender’s or such corporation’s policies of such Affected Person with respect to capital adequacy and liquidity coverage), adequacy) by an amount deemed by such Affected Person Lender to be materialmaterial acting reasonably and in good faith, then, then from time to time, after demand submission by such Affected Person Lender to Borrower (which demand with a copy to Security Agent) of a written request therefor, Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such corporation for such reduction attributable to the period commencing thirty (30) days prior to Lender’s notification thereof pursuant to Section 3(f)(iii).
(iii) Each Lender will furnish to Borrower (with a copy to Security Agent) an Officer’s Certificate setting forth in reasonable detail (A) the events giving rise to the request by such Lender for compensation under subsection (i) or (ii) of this Section 3(f), (B) the basis for determining such compensation and (C) the amount of each request by such Lender for compensation under subsection (i) or (ii) of this Section 3(f), together with a statement that the determinations made in respect of the such compensation comply with the provisions of this Section 3(f) and that none of the exceptions set forth in Section 3(f)(iv) apply with respect to such compensation. Determinations set forth in such Officer’s Certificate shall be accompanied presumed correct, absent manifest error.
(iv) The Borrower shall not be required to make payments under this Section 3(f) to any Lender if (1) a claim hereunder arises through circumstances peculiar to such Lender and which do not affect commercial banks in the same jurisdiction generally or (2) the claim arises out of a relocation by such Lender of its lending office (except any such relocation effected pursuant to Section 3(f)(v)), or (3) if a statement comparably situated Borrower is being treated more favorably by such Lender (as reasonably determined by such Lender) in respect of a claim made hereunder.
(v) Each Lender will, if requested by Borrower, to the extent not inconsistent with any applicable legal or regulatory restrictions and subject to the overall policy considerations of such Lender, use commercially reasonable efforts to designate a different lending office for the Loan Certificates of such Lender affected by such event or, failing that, to take other reasonable measures requested by Borrower (including transferring such Loan Certificates pursuant to Section 9(b) hereof) to mitigate the amount of payment of Additional Costs or other amounts under this Section 3(f), if as a result thereof the additional amounts that would otherwise be required to be paid to such Lender pursuant to this Section 3(f) would be reduced or eliminated and if the making, funding or maintaining of its interest in the Loan Certificates through such other lending office or the taking of such other reasonable measures would not, in the good faith judgment of such Lender, result in any economic, legal or regulatory disadvantage (other than de minimis disadvantages) or adverse tax consequences to such Lender (other than adverse tax consequences for which Borrower agrees to indemnify such Lender); provided, that such Lender will not be obligated to utilize such other lending office pursuant to this Section 3(f) unless Borrower agrees to pay all incremental out-of-pocket expenses, if any, reasonably incurred by such Lender as a result of utilizing such other lending office as described above; provided, further, that such Lender shall have no obligation to designate another lending office that does not maintain loans comparable to the loan evidenced by such Lender’s Loan Certificate. An Officer’s Certificate as to the amount of any such expenses (setting forth in reasonable detail the basis for requesting such demand), amount and the calculation thereof) submitted by such Lender to Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit chargebe presumed correct, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything If after using commercially reasonable efforts as aforesaid such Lender is not able to mitigate the amount of or the need for the Additional Costs to the contrary contained hereinreasonable satisfaction of Borrower within thirty (30) days of such Lender’s notice described in Section 3(f)(iii) hereof, all requests, rules, guidelines, requirements and directives promulgated Borrower may prepay in connection accordance with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless 2.10 of the date enacted, adopted, issued or implemented; provided, however, that Security Agreement the Borrower shall not be responsible for any increased costs relating to unpaid amount of the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for affected Loan Certificates plus interest accrued thereon. Nothing in this Section 5.1, shall affect or postpone any of the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf obligations of Borrower or the rights of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation Lender pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship3(f).
Appears in 2 contracts
Samples: Credit Agreement (Airtran Holdings Inc), Credit Agreement (Airtran Holdings Inc)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change that becomes effective following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable LawLaw (including, without limitation, any law or regulation subjecting any Lender to any taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the defined term “Excluded Taxes” and (C) Connection Income Taxes) on its Commitment, or its deposits, reserves, other liabilities or capital attributable thereto), in each case whether foreign or domestic domestic, including under Basel III (including, without limitation, in connection with the calculation of the “liquidity coverage ratio” thereunder) or Xxxx-Xxxxx, or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body Governmental Authority (whether or not having the force of law), including under Basel III (Aincluding, without limitation, in connection with the calculation of the “liquidity coverage ratio” thereunder) or Xxxx-Xxxxx, there shall be any increase in the cost cost, other than Taxes, to the Administrative Agent, any Lender Agentor any Affiliate, any Lenderparticipant, successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) or there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or Agreement, under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Agent such Affected Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), demand on behalf of such Affected PersonParty, pay to the Administrative Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) 30 days after such demand; provided, provided that the amounts payable under this Section 5.1 2.09 shall be payable without duplication of amounts payable under Section 4.32.10 or Section 10.07.
(b) If either (i) the introduction of or any change that becomes effective following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy adequacy, including under Basel III (including, without limitation, in connection with the calculation of the “liquidity coverage ratio” thereunder) or liquidity coverageXxxx-Xxxxx, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demanddemand and certifying that such demand is being made as a general policy of such Affected Party in the majority of similar transactions in which such claim had or would have an impact on such Affected Party’s rate of return, capital requirements or other economic loss), the Borrower shall pay the Administrative Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction. For the avoidance of doubt, any increase in cost or reduction in interest with respect to any Affected Party caused by regulatory capital allocation adjustments due to FAS 166, 167 and subsequent statements and interpretations shall constitute a circumstance on which such Affected Party may base a claim for reimbursement under this Section 2.09.
(c) If an as a result of any event or circumstance similar to those described in clause (a) or (b) of this Section 2.09, any Affected Person shall at any time (without regard Party is required to whether any Basel III Regulations compensate a bank or Xxxx-Xxxxx Regulations are then in effect) suffer other financial institution providing liquidity support, credit enhancement or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding other similar support to such Affected Person or any of its Affiliates is required or expected to maintain Party in connection with this Agreement or the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment funding or maintenance of a reserve of stable fundingAdvances hereunder, a reduction in the amount of any sum received or receivable then within 30 days after demand by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the AgentParty, the Borrower shall pay to the Agent, for the benefit of such Affected Person, Party such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the additional amount or amounts as may be necessary to compensate the reimburse such Affected Person under this Section 5.1(cParty for any amounts payable or paid by it.
(d) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained hereinFor avoidance of doubt, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption interpretation of any law, rule or regulation for purposes clause (a) and (b) of this Section 5.1(c)2.09, regardless any regulatory changes, rules, guidelines or directives under or issued in connection with Basel III (including, without limitation, in connection with the calculation of the date enacted“liquidity coverage ratio” thereunder) or Xxxx-Xxxxx will be considered as a “change” hereunder, adopted, issued or implemented; provided, however, that the Borrower shall and will not be responsible for any increased costs relating to treated as having been adopted or having come into effect before the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letterdate hereof.
(de) In determining any amount provided for in this Section 5.12.09, the Affected Person Party may use any reasonable averaging and attribution methods. The Agent, on behalf of any Any Affected Person Party making a claim under this Section 5.12.09, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Failure or delay on the part of any Affected Person shall not be entitled Party to any demand compensation pursuant to this Section 5.1 to the extent 2.09 shall not constitute a waiver of such Affected Person is not imposing Party’s right to demand or receive such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)compensation.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Star Mountain Lower Middle-Market Capital Corp), Loan and Servicing Agreement (Star Mountain Lower Middle-Market Capital Corp)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof USActive 31637433.4 -71- from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost to the Facility Agent, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Facility Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Facility Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverage), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 1 contract
Samples: Omnibus Amendment to Transaction Documents (Blackstone Private Credit Fund)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof Closing Date (including, including without limitation, limitation any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof Closing Date of any Applicable LawLaw (including without limitation any law or regulation resulting in any interest payments paid to the Lender under this Agreement being subject to any Tax, except for Taxes on the overall net income of the Lender), in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof Closing Date from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) there shall be any increase in the cost to the Administrative Agent, the Lender or any Affiliate, participant (provided that a participant shall not be entitled to receive any greater payment under this Section 2.10 than the Lender Agent, any Lenderwould have been entitled to receive with respect to the participation sold to such participant), successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) or there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each caseAgreement, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Administrative Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) 10 days after such demand; provided, provided that the amounts payable under this Section 5.1 2.10 shall be without duplication of amounts payable under Section 4.32.11 and shall not include any Excluded Taxes.
(b) If either (i) the introduction of or any change following the date hereof Closing Date in or in the interpretation, administration or application arising following the date hereof Closing Date of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereofClosing Date, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Administrative Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(ed) With respect Failure or delay on the part of any Affected Party to any claim for demand compensation under pursuant to this Section 5.1 2.10 shall not constitute a waiver of such Affected Party’s right to demand or receive such compensation; provided that the Borrower shall not be required to compensate such Affected Person Party pursuant to this Section 2.10 for any amount increased costs incurred or reductions suffered more than 180 days twelve months prior to the date that such Affected Person Party notifies the Borrower of the event that gives any change set forth in clauses (a) and (b) above giving rise to such claimincreased costs or reductions and of such Affected Party’s intention to claim compensation therefor (except that, if such change giving rise to such increased costs or reductions is retroactive, then the twelve-month period referred to above shall be extended to include the period of retroactive effect thereof).
(e) If at any time the Borrower shall be liable for the payment of any additional amounts in accordance with this Section 2.10, then the Borrower shall have the option to terminate this Agreement (in accordance with the provisions of Section 2.18(b) but without the payment of any Make-Whole Premium); provided that such option to terminate shall in no event relieve the Borrower of paying any amounts owing pursuant to this Section 2.10 in accordance with the terms hereof.
(f) An Affected Person shall not be entitled Notwithstanding anything herein to the contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all rules and regulations promulgated thereunder or issued in connection therewith and (ii) any compensation law, request, rule, guideline or directive promulgated by the Bank of International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to this Section 5.1 Basel III shall, in each case, be deemed to have been introduced after the Closing Date, thereby constituting a change for which a claim for increased costs or additional amounts may be made hereunder with respect to the extent such Affected Person is not imposing such charges Parties, regardless of the date enacted, adopted or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)issued.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost to the Administrative Agent, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1A) Indemnified Taxes, (B) Excluded Taxes and (2C) Excluded Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Administrative Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(ba) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Administrative Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(cb) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise otherwise, or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(dc) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (TCP Capital Corp.)
Increased Costs Capital Adequacy. (a) IfIf on or after the Effective Date the adoption of any applicable law, due to either (i) the introduction of rule or regulation, or any change following the date hereof (includingin any applicable law, without limitationrule or regulation, or any change by way of imposition or increase of reserve requirements) in or in the interpretationinterpretation or administration thereof by any Governmental Authority, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body comparable agency charged with the interpretation or administration thereof, or compliance by the Issuing Bank or any Bank with any request or directive after such date (whether or not having the force of law) of any such authority, central bank or comparable agency shall impose, modify or deem applicable any reserve (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System), (A) there special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended by, the Issuing Bank or any Bank or shall be impose on any Bank any other condition affecting its Commitment or the term thereof or its obligation to issue or participate in Letters of Credit and the result of any of the foregoing is to increase in the cost to the Agent, any Lender Agent, any Lender, successor Issuing Bank or assign thereof (each such Bank of which shall be an “Affected Person”) of agreeing to make or making, funding issuing or maintaining any Loan (the Letters of Credit or any reduction of the amount of any payment (whether of principalits obligations pursuant to Section 2.2, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in reduce the amount of any sum received or receivable by an Affected Person the Issuing Bank or such Bank under this Agreement with respect thereto, by an amount deemed by the Issuing Bank or under any other Transaction Document, or (C) any Recipient is subject such Bank to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable theretobe material, then, in each case, the Borrower shall, from time to time, within fifteen (15) days after written demand by the Agent Issuing Bank or such Bank (which demand shall be accompanied by with a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay copy to the Agent), on behalf of the Applicant shall pay in Dollars to the Issuing Bank or such Affected Person, Bank such additional amount or amounts sufficient to as will compensate the Issuing Bank or such Affected Person Bank for such increased costs cost or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3reduction.
(b) If either (i) any Bank or the introduction Issuing Bank shall have determined that, after the Effective Date, the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change following the date hereof in therein, or any change in the interpretation, interpretation or administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance thereof by any Affected Person Governmental Authority, central bank or comparable agency charged with any lawthe interpretation or administration thereof, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy (whether or liquidity coveragenot having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the capital of any Affected Person, such Bank or the Issuing Bank (or its Parent) as a consequence of its such Bank’s or the Issuing Bank’s, obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Bank or the Issuing Bank (or its Parent) could have achieved but for such introductionadoption, change change, request or compliance directive (taking into consideration the its policies of such Affected Person with respect to capital adequacy and liquidity coverage), adequacy) by an amount deemed by such Affected Person Bank or the Issuing Bank to be material, then, then from time to time, within fifteen (15) days after demand by such Affected Person Bank or the Issuing Bank (which demand shall be accompanied by with a statement setting forth in reasonable detail copy to the basis for such demandAgent), the Borrower Applicant shall pay in Dollars to such Bank or the Agent on behalf of such Affected Person Issuing Bank such additional amount or amounts as will compensate such Affected Person Bank or the Issuing Bank (or its Parent) for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations Each Bank or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit chargethe Issuing Bank, assessmentas the case may be, cost or expense by reason of will promptly notify the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with Applicant and the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount Agent of any sum received or receivable by event of which it has knowledge, occurring after the date hereof, which will entitle such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay Bank to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person thereforcompensation pursuant to this Section. A certificate of any Bank or the applicable Affected Person Issuing Bank claiming compensation under this Section and setting forth the additional amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered paid to the Borrower and it hereunder shall be conclusive absent in the absence of manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1such amount, such Bank or the Affected Person Issuing Bank may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If, due to either (i) If after the introduction date of this Agreement the adoption of or any change following the date hereof (including, without limitation, in any change by way Requirement of imposition or increase of reserve requirements) in Law or in the interpretation, interpretation or administration or application arising following the date hereof of thereof by any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body Governmental Authority (whether or not having the force of law) or compliance by any Agent, the Issuing Bank or any Lender with any direction, request or requirement (whether or not having the force of law) of any Governmental Authority or monetary authority, including Regulation D of the Federal Reserve as from time to time in effect (and any successor thereto), in each case after the date hereof:
(A1) there shall be change the basis of taxation of payments to any increase in the cost to the Agent, the Issuing Bank or any Lender in respect of the principal of or interest on any Loan made by such Lender (other than taxes imposed on or measured by the overall net income of such Agent, any the Issuing Bank or such Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, by the jurisdiction in which such Person is organized or has its principal office (Bor lending office) there shall be or by any reduction in the amount of any sum received political subdivision or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and taxing authority therein);
(2) Excluded Taxes) on its loansshall impose, modify or hold applicable any reserve, deposit, compulsory loan principalor other similar requirement against assets of, letters of credit, commitmentsdeposits with or for the account of, or other obligations36 42 extensions of credit by, any office of any Agent, the Issuing Bank or any Lender (which requirement, with respect to Loans, is not otherwise included in the determination of the Adjusted Eurodollar Rate or the Base Rate, as applicable); or
(3) shall impose on any Agent, the Issuing Bank or any Lender any other condition or requirement affecting this Agreement, Letters of Credit issued by the Issuing Bank or participations purchased therein by any Lender or extensions of credit made by any Agent or any Lender; and the result of any of the foregoing is to increase the cost to such Person of making, converting into, continuing or maintaining Loans or issuing or maintaining any Letter of Credit or of purchasing and maintaining any participation therein, or its deposits, reserves, other liabilities or capital attributable theretoto reduce any amount receivable hereunder in respect thereof, then, in each any such case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the such Agent, on behalf of the Issuing Bank or such Affected PersonLender, as the case may be, any additional amounts sufficient necessary to compensate such Affected Person for such increased costs cost or reduced payments within thirty (30) days after receipt, together with interest on such demand; providedamount from the date of the required payment until payment in full thereof at a rate equal at all times to the Base Rate or the Default Rate, that as applicable. If any Person becomes entitled to claim any additional amounts pursuant to this subsection, it shall promptly notify Borrower, through the Administrative Agent, of the event by reason of which it has become so entitled. This covenant shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3hereunder.
(b) If either (i) any Agent, the introduction of Issuing Bank or any change following Lender shall have determined that the applicability of any law, rule, regulation or guideline adopted after the date hereof in pursuant to or in arising out of the interpretationJuly 1988 report of the Basic Committee on Banking Regulations and Supervisory Practices entitled "International Convergence of Capital Measurement and Capital Standards", administration or application arising following the adoption after the date hereof of any other law, guidelinerule, rule regulation or regulationguideline regarding capital adequacy, directive or request any change in any of the foregoing or (ii) in the interpretation or administration of any of the foregoing by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Affected such Person with or any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person such Person's holding company with any request or directive regarding capital adequacy (whether or liquidity coveragenot having the force of law) of any such Governmental Authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the such Person's or such holding company's capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person or such holding company could have achieved but for such introductionadoption, change or compliance (taking into consideration the such Person's or such holding company's policies of such Affected Person with respect to capital adequacy and liquidity coverage), adequacy) by an amount deemed by such Affected Person to be material, then, then from time to time, after demand submission by such Affected Person to Borrower (which demand shall be accompanied by with a statement setting forth in reasonable detail copy to the basis for such demand)Administrative Agent) of a written request therefor, the Borrower shall pay the Agent on behalf of to such Affected Person such additional amount or amounts as will compensate such Affected Person for any such reductionreduction suffered.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person Agent, the Issuing Bank or the applicable Lender, as the case may be, setting forth the such amount or amounts as shall be necessary to compensate such Person or its holding company as specified in paragraph (a) or (b) above, as the Affected Person under this Section 5.1(c) case may be, shall be delivered to Borrower (with a copy to the Borrower Administrative Agent) and shall be conclusive absent 37 43 manifest error. Notwithstanding anything to Borrower shall pay such Person the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of amount shown as due on any law, rule or regulation for purposes of this Section 5.1(c), regardless such certificate delivered by it within 10 Business Days after its receipt of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Lettersame.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost to the Administrative Agent, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (2C) Excluded Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Administrative Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person to be material, then, from time to time, after written demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Administrative Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-inter- company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise otherwise, or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon written demand by or on behalf of such Affected Person through the Administrative Agent, the Borrower shall pay to the Administrative Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Business Development Corp of America)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof interpretation of any Applicable Lawlaw or regulation (including, without limitation, any law or regulation resulting in each case whether foreign or domestic any interest payments paid to any Lender under this Agreement being subject to United States withholding tax) or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body governmental authority (whether or not having the force of law), (A) there shall be any increase in the cost to the Agent, any Lender Agent, or any LenderAffiliate, successor or assign or participant thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, within ten days after written demand complying with Section 2.09(c) by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand)Lender, on behalf of such Affected PersonParty, pay to the Agentsuch Lender, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3payments.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof interpretation of any law, guideline, rule or regulation, directive directive, request or request accounting principle or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive directive, request or request following the date hereof, accounting principle from any central bank, any Official Body other governmental authority, agency or agencyaccounting authority (whether or not having the force of law), including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for of such demand), the Borrower each Lender shall pay the Agent be paid, on behalf of such Affected Person Party (from Collections with respect to Pledged Receivables pursuant to, and subject to the priority of payment set forth in, Section 2.04), such additional amounts as will compensate such Affected Person Party for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.12.09, the Affected Person Party may use any reasonable averaging and attribution methods. The AgentEach Lender, on behalf of any Affected Person Party making a claim under this Section 5.12.09, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest demonstrable error.
(ed) With respect If, as a result of any event or circumstance similar to those described in Section 2.09(a) or 2.09(b), any claim for compensation under Affected Party (that is a Lender) is required to compensate a bank or other financial institution (including, without limitation, any Affiliate of Xxxxxx StanleyAFI) providing liquidity support, credit enhancement or other similar support to such Affected Party in connection with this Section 5.1 Agreement, then, upon demand by such Affected Party, the Borrower shall not be required pay, in accordance with Section 2.04, to compensate such Affected Person Party such additional amount or amounts as may be necessary to reimburse such Affected Party for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person amounts paid by it, and shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount notify each Qualifying Swap Counterparty of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)payment.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.)
Increased Costs Capital Adequacy. (a1) IfSubject to the provisions of Section 2.18 (which shall be controlling with respect to the matters covered thereby), due to either in the event that any Lender shall determine (iwhich determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) the introduction of that any law, treaty or governmental rule, regulation or order, or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in therein or in the interpretation, administration or application arising following thereof (including the date hereof introduction of any Applicable Lawnew law, treaty or governmental rule, regulation or order), or any determination of a court or Governmental Authority, in each case whether foreign that becomes effective after the date hereof, or domestic or (ii) the compliance by such Lender with any guideline guideline, request or request following directive issued or made after the date hereof from by any central bank or other Official Body governmental or quasi-governmental authority (whether or not having the force of law), ): (Ai) there shall be any increase in the cost to the Agent, any subjects such Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwiseits applicable lending office) to any Affected Person hereunder), as additional Tax (other than any Tax on the case may be, (Boverall net income of such Lender) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under with respect to this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document payments to such Lender (or arising its applicable lending office) of principal, interest, fees or any other amount payable hereunder; (ii) imposes, modifies or holds applicable any reserve (including any marginal, emergency, supplemental, special or other reserve), special deposit, compulsory loan, FDIC insurance or similar requirement against assets held by, or deposits or other liabilities in connection herewith or therewith to a level below that which for the account of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender (other than any such Affected Person could have achieved but for such introduction, change reserve or compliance (taking into consideration the policies of such Affected Person other requirements with respect to capital adequacy Eurodollar Rate Loans that are reflected in the definition of Adjusted Eurodollar Rate); or (iii) imposes any other condition (other than with respect to a Tax matter) on or affecting such Lender (or its applicable lending office) or its obligations hereunder or the London interbank market; and liquidity coverage), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf result of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the foregoing is to increase the cost to such Lender of agreeing to make, making or maintaining Loans hereunder or to reduce any amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or Lender (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).or
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Allegiance Telecom Inc)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof Closing Date (including, including without limitation, limitation any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof Closing Date of any Applicable LawLaw (including without limitation any law or regulation resulting in any interest payments paid to the Lender under this Agreement being subject to any Tax, except for Taxes on the overall net income of the Lender), in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof Closing Date from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) there shall be any increase in the cost to the Administrative Agent, the Lender or any Affiliate, participant (provided that a participant shall not be entitled to receive any greater payment under this Section 2.10 than the Lender Agent, any Lenderwould have been entitled to receive with respect to the participation sold to such participant), successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) or there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each caseAgreement, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Administrative Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) 10 days after such demand; provided, provided that the amounts payable under this Section 5.1 2.10 shall be without duplication of amounts payable under Section 4.32.11 and shall not include any Excluded Taxes.
(b) If either (i) the introduction of or any change following the date hereof Closing Date in or in the interpretation, administration or application arising following the date hereof Closing Date of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereofClosing Date, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Administrative Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(ed) With respect Failure or delay on the part of any Affected Party to any claim for demand compensation under pursuant to this Section 5.1 2.10 shall not constitute a waiver of such Affected Party’s right to demand or receive such compensation; provided that the Borrower shall not be required to compensate such Affected Person Party pursuant to this Section 2.10 for any amount increased costs incurred or reductions suffered more than 180 days twelve months prior to the date that such Affected Person Party notifies the Borrower of the event that gives any change set forth in clauses (a) and (b) above giving rise to such claimincreased costs or reductions and of such Affected Party’s intention to claim compensation therefor (except that, if such change giving rise to such increased costs or reductions is retroactive, then the twelve-month period referred to above shall be extended to include the period of retroactive effect thereof).
(e) If at any time the Borrower shall be liable for the payment of any additional amounts in accordance with this Section 2.10, then the Borrower shall have the option to terminate this Agreement (in accordance with the provisions of Section 2.18(b) but without the payment of any Make-Whole Premium); provided that such option to terminate shall in no event relieve the Borrower of paying any amounts owing pursuant to this Section 2.10 in accordance with the terms hereof.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 Notwithstanding anything herein to the extent such Affected Person is not imposing such charges contrary, the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all rules and regulations promulgated thereunder or compensation on other borrowers similarly situated issued in connection therewith shall be deemed to have been introduced after the Closing Date, thereby constituting a change for which a claim for increased costs or additional amounts may be made hereunder with respect to the Borrower hereunder under comparable credit facilities (it being understood that Affected Parties, regardless of the amount of such additional date enacted, adopted or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)issued.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change that becomes effective following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable LawLaw (including, without limitation, any law or regulation resulting in any interest payments paid to any Lender under this Agreement being subject to any Tax, except for Taxes on the overall net income of such Lender), in each case whether foreign or domestic domestic, including under Basel III or Xxxx-Xxxxx, or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) including under Basel III or Xxxx-Xxxxx, there shall be any increase in the cost to the Administrative Agent, any Lender, any Lender Agent, any LenderLiquidity Bank or any Affiliate, participant, successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) or there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or Agreement, under any other Transaction Document, Document or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each caseLiquidity Agreement, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Administrative Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) 10 days after such demand; provided, provided that the amounts payable under this Section 5.1 2.10 shall be without duplication of amounts payable under Section 4.32.11 and shall not include any Excluded Taxes.
(b) If either (i) the introduction of or any change that becomes effective following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageliquidity, including under Basel III or Xxxx-Xxxxx, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageor liquidity), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Administrative Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction. For the avoidance of doubt, any increase in cost or reduction in Yield with respect to any Affected Party caused by regulatory capital allocation adjustments due to FAS 166, 167 and subsequent statements and interpretations shall constitute a circumstance on which such Affected Party may base a claim for reimbursement under this Section 2.10.
(c) If an Affected Person shall at as a result of any time event or circumstance similar to those described in clause (without regard to whether any Basel III Regulations a) or Xxxx-Xxxxx Regulations are then in effect(b) suffer or incur of this Section 2.10, (i) any explicit Affected Party is required to compensate a bank or implicit chargeother financial institution providing liquidity support, assessment, cost credit enhancement or expense by reason of the amount or type of assets, capital or supply of funding other similar support to such Affected Person or any of its Affiliates is required or expected to maintain Party in connection with this Agreement or the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment funding or maintenance of a reserve of stable fundingAdvances hereunder, a reduction in the amount of any sum received or receivable then within ten days after demand by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the AgentParty, the Borrower shall pay to the Agent, for the benefit of such Affected Person, Party such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the additional amount or amounts as may be necessary to compensate reimburse such Affected Party for any amounts payable or paid by it, or (ii) the Affected Person under this Section 5.1(cAdministrative Agent (whether in its own judgment or at the request of the Majority Lenders) deems it necessary or appropriate to obtain a credit rating on the Revolving Notes, the Borrower shall be delivered (x) provide (as promptly as possible and in any event no later than 60 days following receipt by the Borrower of such reasonable request) at least one Rating Agency designated by the Administrative Agent with all information and documents reasonably requested by such Rating Agency (to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything extent such information or documents are in the possession of or reasonably available to the contrary contained hereinBorrower) and otherwise cooperate with such Rating Agency’s review of the Transaction Documents and transactions contemplated hereby, all requestsand (y) pay the costs and expenses of such Rating Agency in respect of the rating of the Revolving Notes.
(d) For avoidance of doubt, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption interpretation of any law, rule or regulation for purposes clause (a) and (b) of this Section 5.1(c)2.10, regardless of any regulatory changes, rules, guidelines or directives under or issued in connection with Basel III or Xxxx-Xxxxx will be considered as a “change” hereunder, and will not be treated as having been adopted or having come into effect before the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letterhereof.
(de) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Failure or delay on the part of any Affected Person shall not be entitled Party to any demand compensation pursuant to this Section 5.1 to the extent 2.10 shall not constitute a waiver of such Affected Person is not imposing Party’s right to demand or receive such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)compensation.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Solar Senior Capital Ltd.)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof Closing Date (including, without limitation, any change by way of imposition or increase of reserve (including pursuant to regulations issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency, special, supplemental or other marginal reserve requirement) with respect to eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D)) or liquidity requirements) in or in the interpretation, administration or application arising following the date hereof Closing Date of any Applicable LawLaw (including, without limitation, any law or regulation resulting in any loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto of any Lender being subject to any Tax (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes)), in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof Closing Date from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) there shall be any increase in the cost (other than Taxes) to the Administrative Agent, any Lender Agentor any Affiliate, any Lenderparticipant, successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) or there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or under Agreement, any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Administrative Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty ten (3010) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof Closing Date in or in the interpretation, administration or application arising following the date hereof Closing Date of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereofClosing Date, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageliquidity, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageor liquidity), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Administrative Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction.
. For the avoidance of doubt, (ci) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or the Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower Xxxx Street Reform and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, Consumer Protection Act and all requests, rules, guidelinesguidelines or directives thereunder or issued in connection therewith and (ii) all requests, requirements and rules, guidelines or directives promulgated in connection with by the Retention Requirements shallBank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case, be deemed case pursuant to be Basel III shall constitute a change or adoption of any law, rule or regulation circumstance on which such Affected Party may base a claim for purposes of reimbursement under this Section 5.1(c)2.10, regardless of the date enacted, adoptedadopted or issued. AmericasActive:18709990.5
(c) If as a result of any event or circumstance similar to those described in clause (a) or (b) of this Section 2.10, issued any Affected Party is required to compensate a bank or implemented; providedother financial institution providing liquidity support, howevercredit enhancement or other similar support to such Affected Party in connection with this Agreement or the funding or maintenance of Advances hereunder, that then within ten days after demand by such Affected Party, the Borrower shall not pay to such Affected Party such additional amount or amounts as may be responsible necessary to reimburse such Affected Party for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letteramounts payable or paid by it.
(d) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest demonstrable error.
(e) With respect Failure or delay on the part of any Affected Party to any claim for demand compensation under pursuant to this Section 5.1 2.10 shall not constitute a waiver of such Affected Party’s right to demand or receive such compensation.
(f) Notwithstanding anything to the contrary in this Section 2.10, the Borrower shall only be liable for any amount provided for in this Section 2.10, if each Lender certifies in writing to the Borrower that such Lender is generally requiring payment of such amounts from other borrowers that are similarly situated to the Borrower. Moreover, if at any time the Borrower shall be liable for the payment of any amount provided for in this Section 2.10, then the Borrower shall have the option to terminate this Agreement (in accordance with the provisions of Section 2.18(b)), and the Borrower shall not be required to compensate pay the Make-Whole Premium in connection with such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claimtermination.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 1 contract
Samples: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost to the Agent, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverage), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise otherwise, or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 1 contract
Samples: Loan and Servicing Agreement (Blackstone Private Credit Fund)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost to the Facility Agent, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Facility Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Facility Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(ba) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverage), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Facility Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.. USActive 31637433.35 -65-
(cb) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise otherwise, or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Facility Agent, the Borrower shall pay to the Facility Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(dc) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Facility Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost (other than Taxes) to the Facility Agent, any Lender Agent, any Lender, or any successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan maintain the Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1x) Indemnified Taxes, (y) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (2z) Excluded Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Facility Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Facility Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be (i) without duplication of amounts payable under Section 4.34.3 and (ii) due and payable on any given date only to the extent there are amounts available therefor pursuant to Section 8.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverageliquidity, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by the Facility Agent on behalf of such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Facility Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reductionreduction but only to the extent there are amounts available therefore on any given day pursuant to Section 8.3(a).
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise otherwise, or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon after demand by or the Facility Agent on behalf of such Affected Person through the AgentPerson, the Borrower shall pay to the Facility Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefortherefor but only to the extent there are amounts available therefor on any given day pursuant to Section 8.3(a). A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Facility Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim Any demand for compensation under this Section 5.1 must be made within 270 days of the date the related cost, damage, loss or expense is incurred by the applicable Affected Person and the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date only Borrower or customer that such Affected Person notifies is charging for similar costs, damages, losses or expenses at such time. Following such demand for compensation, the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled subject to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges applicable Prepayment Fee or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)premium.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (SCP Private Credit Income BDC LLC)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the Existing Effective Date (with respect to DBNY or any Lender to which DBNY assigns any outstanding Advance) and the date hereof that a Lender becomes a Lender hereunder (with respect to such other Lender, such date, a “Lender Effective Date”) (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof Existing Effective Date or the Lender Effective Date, as applicable, of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof Existing Effective Date or Lender Effective Date, as applicable, from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost to the Agent, any Lender Administrative Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (2C) Excluded Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligationsobligations under this Agreement, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to timetime but subject to Section 8.3, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand, together with documents evidencing the same), on behalf of such Affected Person, pay to the Administrative Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof Existing Effective Date or Lender Effective Date, as applicable, in or in the interpretation, administration or application arising following the date hereof Existing Effective Date or Lender Effective Date, as applicable, of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereofExisting Effective Date, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person to be material, then, from time to timetime but subject to Section 8.3, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand, together with documents evidencing the same), the Borrower shall pay the Administrative Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise otherwise, or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, subject to Section 8.3, upon demand by or on behalf of such Affected Person through the Administrative Agent, the Borrower shall pay to the Administrative Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (HMS Income Fund, Inc.)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof Closing Date (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof Closing Date of any Applicable LawLaw (including, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost to the Agentwithout limitation, any Lender Agent, law or regulation resulting in any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining interest payments paid by any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) Borrower Party to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person Lender under this Agreement or under any other Transaction Document, or (C) any Recipient is being subject to any Taxes Tax (other than (1x) Indemnified Taxes, (y) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (2z) Excluded Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto) or (ii) the compliance with any guideline or request following the Closing Date from any central bank or other Governmental Authority (whether or not having the force of law), thenthere is any increase in the cost to the Administrative Agent, any Lender, any Affiliate, participant, successor or assign thereof (each, an “Affected Party”) due to any agreement to make or any making, funding or maintaining any Funded Loan under this Agreement (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Party hereunder), as the case may be, or there is any reduction in each casethe amount of any sum received or receivable by an Affected Party under this Agreement or any other Transaction Document, the applicable Borrower Party shall, from time to timeas applicable, on each Payment Date in accordance with the Priority of Payments, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Administrative Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) days after such demand; providedamounts, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3“Increased Costs”).
(b) If either (i) the introduction of or any change following the date hereof Closing Date in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereofClosing Date, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, including compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed determined by such Affected Person Party to be material, then, from time to timethe applicable Borrower Party shall, as applicable, on each Payment Date in accordance with the Priority of Payments, after written demand by such Affected Person the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand)) pay to the Administrative Agent, the Borrower shall pay the Agent on behalf of such Affected Person such Party, additional amounts as will sufficient to compensate such Affected Person Party for such reduction. For the avoidance of doubt, any Increased Cost caused by regulatory capital allocation adjustments due to FAS 166, 167 and subsequent statements and interpretations will constitute a circumstance on which such Affected Party may base a claim for reimbursement under this Section 2.11.
(c) If an as a result of any event or circumstance similar to those described in clause (a) or (b) of this Section 2.11, any Affected Person shall at any time (without regard Party is required to whether any Basel III Regulations compensate a bank or Xxxx-Xxxxx Regulations are then in effect) suffer other financial institution providing liquidity support, credit enhancement or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding other similar support to such Affected Person or any of its Affiliates is required or expected to maintain Party in connection with this Agreement or the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment funding or maintenance of a reserve of stable fundingFunded Loans hereunder, a reduction the applicable Borrower Party shall, as applicable, on each Payment Date in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates accordance with the Basel III Regulations or Xxxx-Xxxxx RegulationsPriority of Payments, thenpay to the Administrative Agent, upon demand by or on behalf of such Affected Person through the AgentParty, the Borrower shall pay additional amounts sufficient to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible Party for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letteramounts payable or paid by it.
(d) In determining any amount provided for in this Section 5.12.11, the Affected Person Party may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.11, shall submit to the applicable Borrower Party a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costsIncreased Costs, which certificate shall will be conclusive absent manifest error.
(e) With respect Notwithstanding anything herein to the contrary, all requests, rules, guidelines, regulations requirements and directives promulgated (i) by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority), the Committee of European Banking Supervisors or the United States or foreign regulatory authorities, in each case, pursuant to Basel III or similar capital requirements directive existing on the Closing Date and (ii) pursuant to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act are deemed to have been introduced after the Closing Date, thereby constituting a change for which a claim for compensation under pursuant to this Section 5.1 2.11 may be made by any Affected Party, regardless of the date enacted, adopted, issued or implemented.
(f) Failure or delay on the part of any Affected Party to demand compensation pursuant to this Section 2.11 shall not constitute a waiver of such Affected Party’s right to demand or receive such compensation; provided that, the relevant Borrower Party shall not be required to compensate such an Affected Person Party pursuant to this Section 2.11 for any amount amounts incurred more than 180 days six (6) months prior to the date that such Affected Person Party notifies such Borrower Party of such Affected Party’s intention to claim compensation therefor; provided further, that, if the Borrower of the event that gives circumstances giving rise to such claim.
claim have a retroactive effect, then such six (f6) An Affected Person month period shall not be entitled extended to any compensation pursuant include the period of such retroactive effect. Each Lender agrees that it will take such commercially reasonable actions as the relevant Borrower Party may reasonably request that will avoid the need to this Section 5.1 to the extent such Affected Person is not imposing such charges pay, or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that reduce the amount of any increased amounts referred to in this Section 2.11; provided, that no Lender shall be obligated to take any actions that would, in the reasonable opinion of such additional Lender, be disadvantageous to such Lender or increased cause such Lender to incur any unreimbursed cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)or expense.
Appears in 1 contract
Samples: Revolving Loan Agreement (Owl Rock Core Income Corp.)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost to the Facility Agent, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Facility Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Facility Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(ba) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such USActive 57084911.14 -68- Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverage), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Facility Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(cb) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise otherwise, or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Facility Agent, the Borrower shall pay to the Facility Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(dc) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Facility Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Blackstone Private Credit Fund)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost (other than Taxes) to the Facility Agent, any Lender Agent, any Lender, or any successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction DocumentDocument (other than as a result of Taxes), or (C) any Recipient is subject to any Taxes (other than (1x) Indemnified Taxes, (y) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (2z) Excluded -61- USActive 58353885.2 Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Facility Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Facility Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverageliquidity, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person to be material, then, from time to timetime but subject to Section 8.3, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Facility Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reductionreduction but only to the extent there are amounts available therefore on any given day pursuant to Section 8.3(a).
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise otherwise, or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Facility Agent, the Borrower shall pay to the Facility Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefortherefor but only to the extent there are amounts available therefor on any given day pursuant to Section 8.3(a). A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Facility Agent, on USActive 58353885.2 behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (MSD Investment Corp.)
Increased Costs Capital Adequacy. (a) If, due to either (i) In the event that any --------------------------------- introduction of or change in any change following law, rule, regulation or treaty or in the interpretation or application thereof occurring after the date hereof (including, without limitation, or compliance by any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance Lender with any guideline request, guideline, policy or request following the date hereof from any central bank or other Official Body directive (whether or not having the force of law)) made or issued after the date hereof by any central bank or other Governmental Authority shall:
(i) subject any Lender to any tax, (A) there shall be duty or other charge of any increase in the cost kind whatsoever with respect to the Agentthis Agreement, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan (Note or any reduction Loans made hereunder, or change the basis of the amount taxation of any payment (whether payments to such Lender of principal, interest, feefees or any other amount payable hereunder or on the Notes (other than any tax of a type (x) described in Section 4.8, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there liability for which shall be any reduction in the amount of any sum received or receivable governed by an Affected Person under this Agreement or under any other Transaction DocumentSection 4.8, or (Cy) imposed on or measured with respect to the net income or profits of such Lender); or
(ii) impose, modify or deem applicable any Recipient is subject to reserve, special deposit, compulsory loan or similar requirement against assets held by, or deposits or other liabilities in or for the account of, Loans by, or Commitments issued or extended by such Lender (including, without limitation, any Taxes (such requirement imposed by the Board of Governors of the Federal Reserve System other than any charge by way of the imposition or increase of reserve requirements included in Eurodollar Reserve Requirement); or
(1iii) Indemnified Taxes impose on such Lender any other condition; and (2) Excluded Taxes) on its loansthe result of any of the foregoing is to increase the cost to such Lender of making, loan principalrenewing or maintaining any Commitment or any Eurodollar Loan or to reduce any amount receivable hereunder or under the Notes in respect of any Commitment or any Eurodollar Loan, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable theretoby an amount that is deemed by such Lender to be material, then, in each any such case, the Borrower shallCompany shall promptly pay such Lender, from time to timepromptly after its demand, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected Person, any additional amounts sufficient necessary to compensate such Affected Person Lender for such increased costs additional cost or reduced payments within thirty (30) days after reduction to the extent that such demand; provided, Lender in good faith determines that such additional cost or reduction is allocable to such Lender's Commitment hereunder or to the amounts payable under this Section 5.1 shall be without duplication issuance or maintenance of amounts payable under Section 4.3any Loans hereunder.
(b) If either (i) In the introduction of event that any Lender shall have determined that the adoption or any change following the date hereof in or in the interpretation, administration or application arising following implementation after the date hereof of any law, guidelinerule, rule regulation or regulationguideline regarding capital adequacy, directive capital maintenance or request similar requirement or (ii) any change therein or in the interpretation or application thereof or compliance by any Affected Person Lender or any corporation controlling any Lender with any lawrequest, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request policy or directive regarding capital adequacy (whether or liquidity coveragenot having the force of law) from any central bank or other Governmental Authority, has does or would have the effect of reducing the rate of return on the such Lender's or such Lender's controlling corporation's capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith its Loans to a level below that which any such Affected Person Lender or such Lender's controlling corporation could have achieved but for such introductionadoption, change or compliance (taking into consideration the such Lender's or such Lender's controlling corporation's policies of such Affected Person with respect to capital adequacy and liquidity coverage), adequacy) by an amount deemed by such Affected Person Lender to be material, then, then from time to time, promptly after demand by such Affected Person Lender to the Company (which demand shall be accompanied by with a statement setting forth in reasonable detail copy to the basis for such demandAdministrative Agent), the Borrower Company shall pay the Agent on behalf of to such Affected Person Lender such additional amount or amounts as will compensate such Affected Person Lender for such reductionreduction to the extent that such Lender in good faith determines that such reduction is allocable to such Lender's Commitment hereunder or to the issuance or maintenance of any Loans hereunder.
(c) Each Lender will promptly notify the Company and the Administrative Agent upon becoming aware of any event which will cause such Lender to demand payment of any additional amount pursuant to paragraphs (a) or (b) above. A certificate prepared in good faith and setting forth any such additional amount and showing in reasonable detail the computation thereof, submitted by any Lender to the Company, shall be conclusive and binding, absent manifest error.
(d) If an Affected Person any additional amount becomes or will in the future become payable for the account of any Lender under Section 4.4(a) or 4.4 (b), then such Lender will (if so requested by the Company, but without prejudice to provisions of this Section 4.4) consult with the Company and the Administrative Agent with a view to agreeing upon a mutually acceptable alternative arrangement (including the transfer of such Lender's Lending Office to another jurisdiction, if, in the sole discretion of such Lender, such transfer is not in any way disadvantageous for such Lender) which will avoid or minimize the payment of such additional amount in the future and which is not in any way disadvantageous to such Lender as determined by such in its sole discretion.
(e) In the event that any Lender shall determine at any time that by reason of Regulation D, such Lender is required to maintain Eurodollar Reserve Requirements during any period that it has any Eurodollar Loans outstanding, then such Lender shall promptly notify the Company by written notice (without regard or telephonic notice promptly confirmed in writing) specifying the additional amounts reasonably determined by the Lender to whether be required to indemnify such Lender against the cost of maintaining such Eurodollar Reserve Requirements (such written notice to provide a computation of such additional amounts) and the Company shall directly pay to such Lender such specified amounts as additional interest.
(f) In the event that any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effectLender (a "Notifying Lender") suffer or incur shall (i) ---------------- demand payment by the Company of any explicit amount pursuant to Section 4.4, 4.5 or implicit charge4.8 hereof (and the payment of such amounts are, assessmentand are likely to continue to be, cost or expense by reason more onerous in the reasonable judgment of the amount or type of assetsCompany than with respect to the other Lenders), capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason cause the suspension of the actual availability of any type of Loan pursuant to Section 4.7 hereof or anticipated compliance (iii) default in its obligations to the Company hereunder and such default shall be continuing, the Company may, within sixty (60) days of receipt by the Company of such Affected Person demand or any of its Affiliates with suspension, as the Basel III Regulations or Xxxx-Xxxxx Regulations, thencase may be, upon demand by notice (a "Replacement Notice") to such Notifying Lender and ------------------ the Administrative Agent, nominate a new financial institution or on behalf group of financial institutions willing to participate in the facility in the place of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be Notifying Lender (a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c"Replacement Lender"), regardless of the date enacted, adopted, issued or implemented; provided, however, that no ------------------ -------- ------- Replacement Notice may be given by the Borrower Company if (A) such replacement conflicts with any applicable law or regulation, (B) any Event of Default shall have occurred and be continuing at the time of such replacement or (C) prior to any such replacement, in the case of clause (i) such Lender shall have taken any necessary action under Section 4.4, 4.5 or 4.8 (if applicable) so as to eliminate the continued need for payment of amounts owing pursuant to Section 4.4, 4.5, or 4.8. Upon receipt of such notice from the Company and with the prior written consent of the Administrative Agent, which consent shall not be responsible for any increased costs relating unreasonably withheld, such Notifying Lender shall, subject to the Retention Requirements payment by the Company of any amounts due pursuant to Section 4.5, together with the accrued commitment fee owing to such Notifying Lender to the date of such assignment, assign, in accordance with Section 11.6, all of its Commitments, Loans, Notes and other rights and obligations under this Agreement and all other Related Documents to such Replacement Lender; provided, however, that (1) such -------- ------- assignment shall be without recourse, representation or warranty and shall be on terms and conditions reasonably satisfactory to such Notifying Lender and such designated financial institution, (2) the purchase price paid by such Replacement Lender shall be in the then outstanding principal amount of such Notifying Lender's Loans, together with all accrued and unpaid interest and fees in respect thereof, plus all other amounts (including, without duplication of amounts paid in respect thereof as required above, the amounts demanded and unreimbursed under Sections 4.4, 4.5 or 4.8), owing to such Notifying Lender hereunder and (3) the Company shall pay to the Notifying Lender and the Administrative Agent all reasonable out-of-pocket expenses incurred by the Notifying Lender and the Administrative Agent in connection with such assignment and assumption (including the processing fees described in Section 11.6). Upon the effective date of an assignment described above, the Replacement Lender shall become a "Lender" for all purposes under this Agreement and the Related Documents and the Notifying Lender shall be released from all of its obligations under this Agreement and the Related Documents; provided that such Notifying Lender shall continue to be entitled to indemnification under Section 11.5 hereof.
(g) No Lender shall make a claim for payment by the Company of any amount owed to the Lender pursuant to Sections 4.4, 4.5 or 4.8 unless such claim has been made within 270 days of the incurrence of such claim so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations Lender had actual knowledge of such additional or increased costs, which certificate shall be conclusive absent manifest errorincurrence.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 1 contract
Samples: Senior Credit Agreement (Penncorp Financial Group Inc /De/)
Increased Costs Capital Adequacy. (a) IfSubject to Section 2.20 (which shall be controlling with respect to the matters covered thereby), due to either (i) if any Lender, any Agent or the introduction of Issuing Bank shall have determined that the adoption or implementation of, or any change following the date hereof (including, without limitationin, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by way of imposition any Lender, any Agent or increase of reserve requirements) in the Issuing Bank or in any Person controlling any such Agent, any such Lender or the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance Issuing Bank with any directive of, or guideline or request following the date hereof from from, any central bank or other Official Body Governmental Authority or the introduction of, or change in, any accounting principles applicable to any Lender, any Agent or the Issuing Bank or any Person controlling any such Agent, any such Lender or the Issuing Bank, in each case after the date hereof (in each case, whether or not having the force of law) (each a “Change in Law”), shall (i) subject such Agent, such Lender or the Issuing Bank, or any Person controlling such Agent, such Lender or the Issuing Bank to any tax, duty or other charge with respect to this Agreement or any Loan made by such Agent or such Lender or any Synthetic Letter of Credit issued by the Issuing Bank, or change the basis of taxation of payments to such Agent, such Lender or the Issuing Bank or any Person controlling such Agent, such Lender or the Issuing Bank of any amounts payable hereunder (except for taxes on the overall net income of such Agent, such Lender or the Issuing Bank or any Person controlling such Agent, such Lender or the Issuing Bank), (Aii) there impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan, any Synthetic Letter of Credit or against assets of or held by, or deposits with or for the account of, or credit extended by, such Agent, such Lender or the Issuing Bank or any Person controlling such Agent, such Lender or the Issuing Bank or (iii) impose on such Agent, such Lender or the Issuing Bank or any Person controlling such Agent, such Lender or the Issuing Bank any other condition regarding this Agreement or any Loan or Synthetic Letter of Credit, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be any to increase in the cost to the such Agent, such Lender or the Issuing Bank of making any Lender AgentLoan, issuing, guaranteeing or participating in any LenderSynthetic Letter of Credit, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan (or issue, guaranty or participate in any reduction Synthetic Letter of the Credit, or to reduce any amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement such Agent, such Lender or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable theretothe Issuing Bank hereunder, then, in each casewithin 5 Business Days of written demand (including documentation reasonably supporting such request) by such Agent, such Lender or the Issuing Bank, the Borrower shall, from time to time, after written demand by the Agent (which demand Borrowers shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the such Agent, on behalf of such Affected Person, Lender or the Issuing Bank such additional amounts sufficient to as will compensate such Affected Person Agent, such Lender or the Issuing Bank for such increased costs or reduced payments within thirty (30) days after such demandreductions in amount; provided, that neither Company nor any of its Subsidiaries shall be required to compensate any Agent, any Lender or the amounts payable under Issuing Bank pursuant to this Section 5.1 for any increased costs incurred more than 180 days prior to the date that such Agent, such Lender or Issuing Bank notifies Company in writing of the increased costs and of such Agent’s, such Lender’s or Issuing Bank’s intention to claim compensation thereof; provided, further, that if the circumstance giving rise to such increased costs is retroactive, then the 180 day period referred to above shall be without duplication extended to include the period of amounts payable under Section 4.3retroactive effect thereof.
(b) If any Agent, any Lender or the Issuing Bank shall have determined that any Change in Law either (i) affects or would affect the introduction amount of capital required or expected to be maintained by such Agent, such Lender or the Issuing Bank or any change following Person controlling such Agent, such Lender or the date hereof in Issuing Bank, and such Agent, such Lender or in the interpretation, administration Issuing Bank reasonably determines that the amount of such capital is increased as a direct or application arising following the date hereof indirect consequence of any lawLoans made or maintained, guidelineSynthetic Letters of Credit issued or any guaranty or participation with respect thereto, rule such Agent’s, such Lender’s or regulationthe Issuing Bank’s or such other controlling Person’s other obligations hereunder, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on such Agent’s, such Lender’s or the Issuing Bank’s such other controlling Person’s capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Agent, such Lender or the Issuing Bank or such controlling Person could have achieved but for such introductioncircumstances as a consequence of any Loans made or maintained, change Synthetic Letters of Credit issued, or compliance any guaranty or participation with respect thereto or any agreement to make Loans, to issue Synthetic Letters of Credit or such Agent’s, such Lender’s or the Issuing Bank’s or such other controlling Person’s other obligations hereunder (in each case, taking into consideration consideration, such Agent’s, such Lender’s or the Issuing Bank’s or such other controlling Person’s policies of such Affected Person with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person to be material, then, within 5 Business Days of written demand (such demand to include documentation reasonably supporting such request) by such Agent, such Lender or the Issuing Bank, the Borrowers shall pay to such Agent, such Lender or the Issuing Bank from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person time such additional amounts as will compensate such Affected Person Agent, such Lender or the Issuing Bank for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, maintaining such increased capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Agent’s, such Lender’s or the Issuing Bank’s or such other controlling Person’s or Affiliate’s assets or capital; provided, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or that neither Company nor any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Subsidiaries shall be required to compensate any Agent, the Borrower shall pay Lender or Issuig Bank pursuant to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person Agent, such Lender or Issuing Bank notifies the Borrower Company in writing of the event increased costs and of such Agent’s, such Lender’s or Issuing Bank’s intention to claim compensation thereof; provided, further, that gives if the circumstance giving rise to such claimincreased costs is retroactive, then the 180 day period referred to above shall be extended to include the period of retroactive effect thereof.
(fc) An Affected Person shall not be entitled to any compensation pursuant to All amounts payable under this Section 5.1 2.19 shall bear interest from the date that is ten (10) days after the date of demand by any Agent, any Lender or the Issuing Bank until payment in full to such Agent, such Lender or the Issuing Bank at the Prime Rate. A certificate of such Agent, such Lender or the Issuing Bank claiming compensation under this Section 2.19, specifying the event herein above described and the nature of such event shall be submitted by such Agent, such Lender or the Issuing Bank to the extent Administrative Borrower, setting forth the additional amount due and an explanation of the calculation thereof, and such Affected Person is not imposing Agent’s, such charges Lender’s or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that Issuing Bank’s reasons for invoking the amount provisions of such additional or increased cost between similarly situated borrowers may this Section 2.19, and shall be different after consideration of facility pricing, structure, usage patterns, capital treatment final and banking relationship)conclusive absent manifest error.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Term Loan and Guaranty Agreement (Dura Automotive Systems Inc)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof Closing Date (including, without limitation, any change by way of imposition or increase of reserve or liquidity requirements) in or in the interpretation, administration or application arising following the date hereof Closing Date of any Applicable LawLaw (including, without limitation, any law or regulation resulting in any loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto of any Lender being subject to any Tax, except for Taxes on the overall net income of such Lender or Taxes that are franchise Taxes or branch profits Taxes), in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof Closing Date from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) there shall be any increase in the cost to the Administrative Agent, any Lender Agentor any Affiliate, participant (provided that a participant shall not be entitled to receive any Lendergreater payment under this Section 2.10 than the Lender would have been entitled to receive with respect to the participation sold to such participant), successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) or there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or under Agreement, any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demanddemand and shall be made within 180 days of such Affected Party obtaining knowledge of the occurrence of the circumstances in respect of this Agreement), on behalf of such Affected PersonParty, pay to the Administrative Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) 10 days after such demand; provided, that the amounts payable under this Section 5.1 2.10 shall be without duplication not include (A) Indemnified Taxes, (B) any Taxes described in clauses (ii) through (iv) of amounts payable under Section 4.3the definition of Excluded Taxes and (C) Connection Income Taxes.
(b) If either (i) the introduction of or any change following the date hereof Closing Date in or in the interpretation, administration or application arising following the date hereof Closing Date of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereofClosing Date, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageliquidity, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageor liquidity), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Administrative Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction.
. For the avoidance of doubt, (ci) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or the Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower Xxxx Street Reform and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, Consumer Protection Act and all requests, rules, guidelinesguidelines or directives thereunder or issued in connection therewith and (ii) all requests, requirements and rules, guidelines or directives promulgated in connection with by the Retention Requirements shallBank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case, be deemed case pursuant to be Basel III shall constitute a change or adoption of any law, rule or regulation circumstance on which such Affected Party may base a claim for purposes of reimbursement under this Section 5.1(c)2.10, regardless of the date enacted, adoptedadopted or issued.
(c) If as a result of any event or circumstance similar to those described in clause (a) or (b) of this Section 2.10, issued any Affected Party is required to compensate a bank or implemented; providedother financial institution providing liquidity support, howevercredit enhancement or other similar support to such Affected Party in connection with this Agreement or the funding or maintenance of Advances hereunder, that then within ten days after demand by such Affected Party, the Borrower shall not pay to such Affected Party such additional amount or amounts as may be responsible necessary to reimburse such Affected Party for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letteramounts payable or paid by it.
(d) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest demonstrable error.
(e) With respect Failure or delay on the part of any Affected Party to any claim for demand compensation under pursuant to this Section 5.1 2.10 shall not constitute a waiver of such Affected Party’s right to demand or receive such compensation; provided that, subject to the last sentence of Section 2.10(b), the Borrower shall not be required to compensate such Affected Person a Lender pursuant to this Section for any amount increased costs incurred or reductions suffered more than 180 days nine months prior to the date that such Affected Person Lender notifies the Borrower of the event that gives change in law giving rise to such claimincreased costs or reductions, and of such Lender’s intention to claim compensation therefor (except that, if the change in law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).
(f) An Affected Person shall not be entitled Notwithstanding anything to any compensation pursuant to the contrary in this Section 5.1 2.10, the Borrower shall only be liable for any amount provided for in this Section 2.10, if each Lender certifies in writing to the extent Borrower that such Affected Person Lender is not imposing generally requiring payment of such charges or compensation on amounts from other borrowers that are similarly situated to the Borrower. Moreover, if at any time the Borrower hereunder under comparable credit facilities shall be liable for the payment of any amount provided for in this Section 2.10, then the Borrower shall have the option to terminate this Agreement (it being understood in accordance with the provisions of Section 2.18(b)); provided that the amount of such additional or increased cost between similarly situated borrowers may Borrower shall not be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)required to pay the Make-Whole Premium.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Onex Direct Lending BDC Fund)
Increased Costs Capital Adequacy. (a) IfIf the adoption or effectiveness, due to either (i) after the introduction date hereof, of any applicable law, rule or regulation, or any change following the date hereof (includingtherein, without limitation, or any change by way of imposition or increase of reserve requirements) in or in the interpretationinterpretation or administration thereof by any governmental authority, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body comparable agency charged with the interpretation or administration thereof, or compliance by any Bank with any request or directive (whether or not having the force of law), (A) there shall be any increase in the cost to the Agent, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing any such authority, central bank or comparable agency:
(i) shall subject any Bank to any Imposition or other charge with respect to any LIBOR Loan or its obligation to make LIBOR Loans, or making, funding shall change the basis of taxation of payments to any Bank of the principal of or maintaining interest on any LIBOR Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person other amounts due under this Agreement in respect of any LIBOR Loan or under its obligation to make LIBOR Loans (except for changes in the rate of tax on the overall net income of such Bank); or
(ii) shall impose, modify or deem applicable any reserve, special deposit, deposit insurance or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System, but excluding any such requirement already taken into account in determining the applicable Reserve Rate) against assets of, deposits with or for the account of, or credit extended by, any Bank or shall impose on any Bank or on the London interbank market any other Transaction Documentcondition affecting any LIBOR Loan of such Bank, or such Bank's obligations to make LIBOR Loans
(Ca) any Recipient is are subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, the limitation contained in each case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demandSubsection 2.09(c), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) any Bank shall have determined that the introduction of adoption or any change following the date hereof in or in the interpretation, administration or application arising following effectiveness after the date hereof of any applicable law, guideline, rule or regulationregulation regarding capital requirements for banks or bank holding companies, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following change therein after the date hereof, from or any change after the date hereof in the interpretation or administration thereof by any governmental authority, central bankbank or comparable agency charged with the interpretation or administration thereof, any Official Body or agency, including, without limitation, compliance by an Affected Person such Bank with any request or directive of such entity regarding capital adequacy (whether or liquidity coverage, not having the force of law) has or would have the effect of reducing the rate of return on the such Bank's capital of with respect to its Commitment or with respect to any Affected Person, as a consequence of its obligations hereunder Loan or any related document Loans (whether or arising in connection herewith or therewith not LIBOR Loans) to a level below that which any such Affected Person could Bank would have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverage), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).into
Appears in 1 contract
Samples: Loan Agreement (Unitrode Corp)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof interpretation of any Applicable Lawlaw or regulation (including, without limitation, any law or regulation resulting in each case whether foreign or domestic any interest payments paid to a Lender under this Agreement being subject to United States withholding tax) or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body governmental authority (whether or not having the force of law), (A) there shall be any increase in the cost to the Agent, Lender or any Lender Agent, any LenderAffiliate, successor or assign or participant thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, within ten days after written demand complying with Section 2.09(c) by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand)Lender, on behalf of such Affected PersonParty, pay to the AgentLender, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3payments.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof interpretation of any law, guideline, rule or regulation, directive directive, request or request accounting principle or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive directive, request or request following the date hereof, accounting principle from any central bank, any Official Body other governmental authority, agency or agencyaccounting authority (whether or not having the force of law), including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for of such demand), the Borrower Lender shall pay the Agent be paid, on behalf of such Affected Person Party (from Collections with respect to Pledged Receivables pursuant to, and subject to the priority of payment set forth in, Section 2.04), such additional amounts as will compensate such Affected Person Party for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.12.09, the Affected Person Party may use any reasonable averaging and attribution methods. The AgentLender, on behalf of any Affected Person Party making a claim under this Section 5.12.09, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest demonstrable error.
(ed) With respect If, as a result of any event or circumstance similar to those described in Section 2.09(a) or 2.09(b), any claim for compensation under Affected Party (that is a Lender) is required to compensate a bank or other financial institution (including, without limitation, any Affiliate of Mxxxxx Sxxxxxx) providing liquidity support, credit enhancement or other similar support to such Affected Party in connection with this Section 5.1 Agreement, then, upon demand by such Affected Party, the Borrower shall not be required pay, in accordance with Section 2.04, to compensate such Affected Person Party such additional amount or amounts as may be necessary to reimburse such Affected Party for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person amounts paid by it, and shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount notify each Qualified Swap Counterparty of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)payment.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (Resource America Inc)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof Original Closing Date (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable LawLaw (including, without limitation, any Applicable Law resulting in any interest payments paid to any Lender under this Agreement being subject to any Tax, except for Excluded Taxes), in each case case, whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) there shall be any increase in the cost to the Administrative Agent, any Lender, any Lender Agent, any LenderLiquidity Bank or any Affiliate, participant, successor or assign thereof (each of which shall be an “"Affected Person”Party") of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) or there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or Agreement, under any other Transaction Document, Document or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each caseLiquidity Agreement, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Administrative Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) 10 days after such demand; provided, that the amounts payable under this Section 5.1 2.10 shall be without duplication of amounts payable under Section 4.32.11 and shall not include any Excluded Taxes.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request Applicable Law or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding liquidity and capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Administrative Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction. For the avoidance of doubt, any increase in cost and/or reduction in Yield with respect to any Affected Party caused by regulatory capital allocation adjustments due to FAS 166, 167 and subsequent statements and interpretations shall constitute a circumstance on which such Affected Party may base a claim for reimbursement under this Section 2.10.
(c) If an as a result of any event or circumstance similar to those described in clause (a) or (b) of this Section 2.10, any Affected Person shall at any time (without regard Party is required to whether any Basel III Regulations compensate a bank or Xxxx-Xxxxx Regulations are then in effect) suffer other financial institution providing liquidity support, credit enhancement or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding other similar support to such Affected Person or any of its Affiliates is required or expected to maintain Party in connection with this Agreement or the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment funding or maintenance of a reserve of stable fundingAdvances hereunder, a reduction in the amount of any sum received or receivable then within ten days after demand by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the AgentParty, the Borrower shall pay to the Agent, for the benefit of such Affected Person, Party such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the additional amount or amounts as may be necessary to compensate the reimburse such Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible Party for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letteramounts payable or paid by it.
(d) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error, provided however that no Affected Party shall be requested to disclose confidential or price sensitive information or any other information, to the extent prohibited by law.
(e) With respect Failure or delay on the part of any Affected Party to any claim for demand compensation under pursuant to this Section 5.1 the Borrower 2.10 shall not be required to compensate constitute a waiver of such Affected Person for any amount incurred more than 180 days prior Party's right to the date that demand or receive such Affected Person notifies the Borrower of the event that gives rise to such claimcompensation.
(f) An Affected Person If at any time the Borrower shall not be entitled liable for the payment of any additional amounts in accordance with this Section 2.10, then the Borrower shall have the option to terminate this Agreement (in accordance with the provisions of Section 2.18(b) but without the payment of any compensation Make-Whole Premium); provided, that such option to terminate shall in no event relieve the Borrower of paying any amounts owing pursuant to this Section 5.1 2.10 in accordance with the terms hereof.
(g) Notwithstanding anything herein to the extent such Affected Person is not imposing such charges contrary, (i) the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act and all rules and regulations promulgated thereunder or compensation issued in connection therewith and (ii) any law, request, rule, guideline or directive promulgated by the Bank of International Settlements, the Basel Committee on other borrowers similarly situated Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III shall, in each case, be deemed to have been introduced after the Original Closing Date, thereby constituting a change for which a claim for increased costs or additional amounts may be made hereunder with respect to the Borrower hereunder under comparable credit facilities (it being understood that Affected Parties, regardless of the amount of such additional date enacted, adopted or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)issued.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Business Development Corp of America)
Increased Costs Capital Adequacy. (a) IfIf the adoption, due to either (i) effectiveness or phase-in, after the introduction date hereof, of any applicable law, rule or regulation, or any change following the date hereof (includingtherein, without limitation, or any change by way of imposition or increase of reserve requirements) in or in the interpretationinterpretation or administration thereof by any Governmental Authority, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body comparable agency charged with the interpretation or administration thereof, or compliance by Purchaser with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency (each, a “Regulatory Change”):
(1) shall subject the Purchaser to any tax, imposition or other charge of any kind whatsoever with respect to any amounts due under this Bond Purchase Agreement or the Bonds or any other Bond Document or change the basis of taxation of payments to such Purchaser in respect thereof (except for changes in the rate of tax on the overall net income of the Purchaser and that is imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, or by any jurisdiction in which the lending office of the Purchaser is located, or by any jurisdiction in which the Purchaser is organized, has its principal office or is managed and controlled); or
(2) shall impose, modify or deem applicable any reserve, special deposit, deposit insurance or similar requirement (Aincluding, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System) there against assets of, deposits with or for the account of, or credit extended by, the Purchaser or shall be impose on the Purchaser any other condition or change affecting payments under this Bond Purchase Agreement or the Bonds or the Purchaser’s rights to receive such payment; and the result of any of the foregoing is to increase in the cost to the Agent, any Lender Agent, any Lender, successor or assign thereof (each Purchaser of which shall be an “Affected Person”) of agreeing to make or making, funding making or maintaining any Loan (the investment evidenced by the Bonds or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in reduce the amount of any sum received or receivable by an Affected Person the Purchaser under this Bond Purchase Agreement or under any other Transaction Document, or (C) any Recipient is subject the Bonds by an amount deemed by the Purchaser to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable theretobe material, then, in each case, the Borrower shall, from time to time, after written upon demand by the Agent (which demand shall be accompanied Purchaser and receipt by the Institution of a statement certificate from the Purchaser setting forth in reasonable detail its calculation of the basis for such demand)amount owed, on behalf of such Affected Personthe Institution shall, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after of receipt of such demand; providedcertificate, that pay to the Purchaser such additional amount or amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3as will compensate the Purchaser for such increased costs or reduction in receipts.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretationIf, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following after the date hereof, from any change in, or the introduction, adoption, effectiveness, interpretation, reinterpretation or phase-in of, any law or regulation, directive, guideline, decision or request (whether or not having the force of law) of any court, central bank, any Official Body regulator or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has other Governmental Authority affects or would have affect the effect amount of reducing capital required or expected to be maintained by Purchaser, or any person controlling the Purchaser (each a “Change in Law”), and the Purchaser determines that the rate of return on its or such controlling person’s capital allocated to the capital purchase of any Affected Person, the Bonds and as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith the Purchaser’s ownership of the Bonds is reduced to a level below that which any the Purchaser or such Affected Person controlling person could have achieved but for the occurrence of any such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverage), by an amount deemed by such Affected Person to be materialcircumstance, then, in any such case upon notice from time to timetime by the Purchaser to the Institution, after demand by the Institution shall immediately pay directly to the Purchaser additional amounts sufficient to compensate the Purchaser or such Affected Person controlling person for such reduction in the Purchaser’s rate of return. Such notice shall contain the statement of the Purchaser as to any such additional amount or amounts (which demand shall be accompanied by a statement setting forth including calculations thereof in reasonable detail detail) and shall, in the basis for such demand)absence of manifest error, be conclusive and binding on the Borrower Institution. Institution shall pay the Agent on behalf any amounts due hereunder within thirty (30) days of receipt of such Affected Person such additional amounts as will compensate such Affected Person for such reductionwritten notice.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting Purchaser claiming compensation under this section shall be conclusive in the absence of manifest error. Such certificate shall set forth the nature of the occurrence giving rise to such compensation, the additional amount or amounts necessary to compensate be paid to Purchaser hereunder and the Affected Person under this Section 5.1(cmethod and calculation by which such amounts were determined. In determining such amount, the Purchaser may use any customary method of averaging and attribution that it (in its reasonable discretion) shall be delivered to the Borrower and shall be conclusive absent manifest errordeem applicable. Notwithstanding anything to the contrary contained hereinAny rules, all requestsregulations, rulespolicies, guidelines, directives or similar requirements and directives adopted, promulgated or implemented in connection with (a) the Retention Requirements shallXxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and (b) the Bank for International Settlements, the Basel Committee on Banking Supervision (“BASEL III”) (or any successor or similar authority) or any United States Governmental Authority, in each casecase pursuant to Basel III, shall in all events be deemed to be a change or adoption of any lawhave been imposed, rule or regulation for purposes introduced and adopted after the date of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention LetterBond Purchase Agreement.
(d) No failure on the part of the Purchaser to demand compensation on any one occasion shall constitute a waiver of its right to demand such compensation on any other occasion and no failure on the part of the Purchaser to deliver any certificate in a timely manner shall in any way reduce any obligation of the Institution to the Purchaser under this section.
(e) If the Maximum Marginal Statutory Rate (whether or not the Purchaser is actually taxed at the Maximum Marginal Statutory Rate) decreases for any period during which the Bonds are outstanding then effective on the effective date of such reduction in the Maximum Marginal Statutory Rate, Institution shall pay to Purchaser additional amounts sufficient to compensate Purchaser for such reduction commencing on the Interest Payment Date immediately subsequent to the effective date of such reduction and each Interest Payment Date thereafter. The written statement of the Purchaser as to any such additional amount or amounts (including calculations thereof in reasonable detail) shall, in the absence of manifest error, be conclusive and binding on the Institution. In determining any amount provided for in this Section 5.1such amount, the Affected Person Purchaser may use any reasonable method of averaging and attribution methods. The Agentthat it (in its reasonable discretion shall deem applicable).
(f) Notwithstanding the foregoing, on behalf of any Affected Person making the Purchaser will only have the right to make a claim under this Section 5.1, shall submit to 4.32 within one hundred eighty (180) days of the Borrower a certificate setting forth in reasonable detail the basis for and the computations date of such additional Regulatory Change, Change in Law or increased costs, which certificate shall be conclusive absent manifest errordecrease in the Maximum Marginal Statutory Rate.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 1 contract
Increased Costs Capital Adequacy. Subject to the provisions of Section 2.20 (awhich shall be controlling with respect to the Tax matters), in the event that any Lender (which term shall include Issuing Bank for purposes of this Section 2.19) Ifshall reasonably determine (which determination shall, due to either (iabsent demonstrable error, be final and conclusive and binding upon all parties hereto) the introduction of that any law, treaty or governmental rule, regulation or order, or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in therein or in the interpretation, administration or application arising following thereof (including the date hereof introduction of any Applicable Lawnew law, treaty or governmental rule, regulation or order), or any determination of a court or governmental authority, in each case whether foreign that becomes effective after the date hereof, or domestic or (ii) the compliance by such Lender with any guideline guideline, request or request following directive issued or made after the date hereof from by any central bank or other Official Body governmental or quasi-governmental authority (whether or not having the force of law): (a) imposes, modifies or holds applicable any reserve (including any marginal, emergency, supplemental, special or other reserve), special deposit, compulsory loan, FDIC insurance or similar requirement against assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or other credit (Aincluding letters of credit) there shall be extended by, or any other acquisition of funds by, any office of such Lender (other than any such reserve or other requirements with respect to Eurodollar Rate Loans that are reflected in the definition of Adjusted Eurodollar Rate); or (b) imposes any other condition (other than with respect to a Tax matter) on or affecting such Lender (or its applicable lending office) or its obligations hereunder or the London interbank market; and the result of any of the foregoing is to increase in the cost to the Agent, any such Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or makingmake, funding making or maintaining Loans hereunder or to reduce any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or such Lender (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable applicable lending office) with respect thereto, ; then, in each any such case, Company shall promptly pay to such Lender, upon receipt of the Borrower shallstatement referred to in the next sentence, from time such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its reasonable discretion shall determine) as may be necessary to timecompensate such Lender for any such increased cost or reduction in amounts received or receivable hereunder. Such Lender shall deliver to Company (with a copy to Administrative Agent) a written statement, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to calculating the Agent, on behalf of such Affected Person, additional amounts sufficient owed to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable Lender under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation2.19, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that CREDIT AND GUARANTY AGREEMENT EXECUTION 824610-New York Server 7A which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverage), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive and binding upon all parties hereto absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest demonstrable error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If, due to either (i) If after the introduction date of this Agreement the adoption of or any change following the date hereof (including, without limitation, in any change by way of imposition law or increase of reserve requirements) in regulation or in the interpretation, administration interpretation by any Governmental Authority or application arising following the date hereof of thereof or compliance by any Applicable Law, in each case whether foreign or domestic or (ii) the compliance Bank with any guideline request or request following the date hereof from any central bank or other Official Body directive (whether or not having the force of law)) from any central bank or other Governmental Authority made subsequent to the date of this Agreement:
(i) shall subject any Bank to any tax of any kind whatsoever with respect to this Agreement, any Note, any Letter of Credit, any Application or any LIBOR Rate Loan made by it, or change the basis of taxation of payments to such Bank in respect thereof (except for (A) there shall be any increase in the cost to the Agent, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may beTaxes covered by Section 5.3, (B) there shall be net income taxes and franchise taxes imposed on such Bank as a result of a present or former connection between the jurisdiction of the government or taxing authority imposing such tax and such Bank other than a connection arising solely from such Bank having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement or any reduction Note and (C) changes in the amount rate of tax on the overall net income of such Bank);
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Bank that is not otherwise included in the determination of the LIBOR Rate hereunder (except for amounts covered by Section 4.5 or any other Section hereof); or
(iii) shall impose on such Bank any other condition;
(a) from the Borrower, it shall promptly notify the Borrower, through the Agent, of the event by reason of which it has become so entitled in the manner set forth in Section 5.7(b).
(b) If any Bank determines in good faith that the introduction of or any change in or in the interpretation or application of any sum received law or receivable regulation regarding capital adequacy after the date of this Agreement or compliance by an Affected Person such Bank or any corporation controlling such Bank with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) made or issued after the date of this Agreement does or shall have the effect, as a result of such Bank's obligations under this Agreement or under any other Transaction DocumentLetter of Credit, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the such Bank's or such corporation's capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Bank or such corporation could have achieved but for such introduction, change or compliance (taking into consideration the such Bank's or such corporation's policies of such Affected Person with respect to capital adequacy and liquidity coverage), adequacy) by an amount deemed by such Affected Person Bank to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, Agent for the benefit account of such Affected PersonBank, from time to time as specified by such amount as will, Bank in the determination manner set forth in Section 5.7(b), additional amounts, computed by such Bank in accordance with Section 5.7(a), sufficient to compensate such Bank or such corporation in the light of such Affected Personcircumstances, compensate to the extent that such Affected Person therefor. A certificate Bank reasonably determines such reduction in rate of return is allocable to the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under existence of such Bank's obligations hereunder.
(c) The agreements contained in this Section 5.1(c) 5.1 shall be delivered to survive the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes termination of this Section 5.1(c), regardless Agreement and the payment of the date enacted, adopted, issued or implementedall amounts payable hereunder; provided, however, that in no event shall the Borrower shall not be responsible obligated to reimburse or compensate any Bank for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under amounts contemplated by this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than period prior to the date that is 180 days prior to the date that upon which such Affected Person notifies the Borrower of the event that gives rise to Bank requests in writing such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges reimbursement or compensation on other borrowers similarly situated to from the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)Borrower.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof Closing Date (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof Closing Date of any Applicable Law, Law in each case whether foreign or domestic or (ii) the compliance by an Affected Party with any guideline or request following the date hereof Closing Date from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) there shall be any increase in the cost to the Agent, any Lender Facility Agent, any Lender, participant thereof (provided that a participant shall not be entitled to receive any greater payment under this Section 2.10 than the Lender would have been entitled to receive with respect to the participation sold to such participant), successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) or there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Facility Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Facility Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) days after such demandin accordance with the priority of payments set forth in Section 2.04; provided, provided that the amounts payable under this Section 5.1 2.10(a) shall be without duplication of amounts payable under Section 4.3not apply to any Indemnified Taxes or Excluded Taxes.
(b) If either (i) the introduction of or any change following the date hereof Closing Date (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof Closing Date of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereofClosing Date, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding liquidity or capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Facility Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reductionreduction in accordance with the priority of payments set forth in Section 2.04, provided that this Section 2.10(b) shall not apply to any Indemnified Taxes or Excluded Taxes.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Facility Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(ed) With respect Failure or delay on the part of any Affected Party to any claim for demand compensation under pursuant to this Section 5.1 2.10 shall not constitute a waiver of such Affected Party’s right to demand or receive such compensation; provided that each Affected Party will notify the Borrower after it has received official notice of any event which it anticipates will entitle such Affected Party to such additional amounts as compensation. Notwithstanding anything to the contrary in this Section 2.10, the Borrower shall not be required to compensate such an Affected Person Party pursuant to this Section 2.10 for any amount amounts incurred more than 180 days six (6) months prior to the date that such Affected Person Party notifies the Borrower of such Affected Party’s intention to claim compensation therefor; provided that, if the event that gives circumstances giving rise to such claimclaim have a retroactive effect, then such six (6) month period shall be extended to include the period of such retroactive effect.
(e) If at any time the Borrower shall be liable for the payment of any additional amounts in accordance with this Section 2.10, then the Borrower shall have the option to terminate this Agreement (in accordance with the provisions of Section 2.18 but without the payment of any Optional Prepayment Penalty); provided that such option to terminate shall in no event relieve the Borrower of paying any amounts owing pursuant to this Section 2.10 in accordance with the terms hereof.
(f) An Notwithstanding anything herein to the contrary, (i) the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act and all rules and regulations promulgated thereunder or issued in connection therewith and (ii) any law, request, rule, guideline or directive promulgated by the Bank of International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III shall, in each case, be deemed to have been introduced after the Closing Date, thereby constituting a change for which a claim for increased costs or additional amounts may be made hereunder with respect to the Affected Person shall not be entitled Parties, regardless of the date enacted, adopted or issued.
(g) If a Disruption Event with respect to any compensation pursuant to this Section 5.1 Lender occurs, such Lender shall in turn so notify the Borrower (with a copy to the extent Servicer and the Facility Agent), whereupon all Advances Outstanding of the affected Lender in respect of which Yxxxx accrues at the Benchmark shall immediately be converted into Advances Outstanding in respect of which such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to Yield accrues at the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)Base Rate.
Appears in 1 contract
Samples: Loan and Security Agreement (North Haven Private Income Fund LLC)
Increased Costs Capital Adequacy. (a) If, due to either If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, assessment, fee, insurance charge, liquidity or similar requirement (including any compulsory loan requirement, insurance charge or other assessment) against assets of, deposits with or for the introduction of account of, or any change following the date hereof (including, without limitationcredit extended by, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost to the Administrative Agent, any Lender Agentor any Affiliate, any Lenderparticipant, successor or assign thereof (each of which shall be an “Affected PersonParty”);
(ii) of agreeing to make or making, funding or maintaining any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) subject any Recipient is subject to any Taxes (other than (1A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (2C) Excluded Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
(iii) impose on any Affected Party or the market for the applicable Benchmark any other condition, thencost or expense (other than Taxes) affecting this Agreement or Advances or participation therein or the obligation or right of any Lender to make Advances hereunder;
(iv) change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(v) change the rate for, or the manner in each casewhich the Federal Deposit Insurance Corporation (or a successor thereto) assesses deposit insurance premiums or similar charges; and the result of any of the foregoing shall be to increase the cost to or impose a cost upon such Affected Party of funding or making or maintaining any Advance or of maintaining its obligation to make any such Advance or otherwise performing its obligations under the Transaction Documents or to increase the cost to such Affected Party or to reduce the amount of any sum received or receivable by such Affected Party, whether of principal, interest or otherwise or to require any payment calculated by reference to the Borrower shall, from time to time, after written demand amount of interest or loans received or held by the Agent such Affected Party (which demand shall be accompanied by a statement from such Affected Party to the Borrower setting forth the basis in reasonable detail for any of the basis for such demandforegoing), on behalf of then the Borrower will pay to such Affected Person, pay to the Agent, on behalf of Party such Affected Person, additional amount or amounts sufficient to as will compensate such Affected Person Party for such increased additional costs incurred or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3reduction suffered.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with Party determines, acting in a commercially reasonable manner and in good faith, that any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive Change in Law regarding capital adequacy or liquidity coverage, requirements has or would have the effect of reducing the rate of return on such Affected Party’s capital or on the capital of any Affected PersonParty’s holding company, if any, as a consequence of its obligations hereunder this Agreement or any related document or arising in connection herewith or therewith the Advances made by such Affected Party to a level below that which any such Affected Person Party or Affected Party’s holding company could have achieved but for such introduction, change or compliance Change in Law (taking into consideration such Affected Party’s policies and the policies of such Affected Person Party’s holding company with respect to capital adequacy and liquidity coverage), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person liquidity) (which demand shall be accompanied by a statement from such Affected Party to the Borrower setting forth the basis in reasonable detail of any of the basis for such demandforegoing), then from time to time the Borrower shall will pay the Agent on behalf of to such Affected Person Party such additional amount or amounts as will compensate such Affected Person Party or Affected Party’s holding company for any such reductionreduction suffered.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of an Affected Party providing an explanation of the applicable Affected Person Change in Law and setting forth the amount or amounts necessary to compensate such Affected Party or its holding company, as the Affected Person under case may be, as specified in clause (a) or (b) of this Section 5.1(c) 2.10 shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person Any Indemnified Party making a claim under this Section 5.1, 2.10 shall submit to the Borrower Manager a certificate setting forth in reasonable detail the basis for and the computations of written description as to such additional or increased costs, which cost or reduction and the calculation thereof. The Borrower shall pay such Affected Party the amount shown as due on any such certificate shall be conclusive absent manifest erroron the first Payment Date pursuant to Section 2.04 occurring at least five (5) Business Days following receipt thereof.
(ed) With respect Failure or delay on the part of any Affected Party to any claim for demand compensation under pursuant to this Section 5.1 2.10 shall not constitute a waiver of any Affected Party’s right to demand such compensation; provided that the Borrower shall not be required to compensate such any Affected Person Party pursuant to this Section 2.10 for any amount increased costs or reductions incurred more than 180 one hundred and eighty (180) days prior to the date that such Affected Person Party notifies the Borrower of the event that gives Change in Law giving rise to such claimincreased costs or reductions and of such Affected Party’s intention to claim compensation therefor; provided, further, that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the one hundred and eighty (180)-day period referred to above shall be extended to include the period of retroactive effect thereof.
(fe) An Affected Person If at any time the Borrower shall not be entitled liable for the payment of any additional amounts in accordance with this Section 2.10), then the Borrower shall have the option to terminate this Agreement (in accordance with the provisions of Section 2.16(b) but without the payment of any compensation Breakage Fees); provided, that such option to terminate shall in no event relieve the Borrower of paying any amounts owing pursuant to this Section 5.1 to 2.10 in accordance with the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)terms hereof.
Appears in 1 contract
Samples: Loan and Security Agreement (Stepstone Private Credit Fund LLC)
Increased Costs Capital Adequacy. (a) IfIn addition to the payment of principal, interest and fees as stated in this Article, if there shall be any increase in the direct or indirect costs to the Lender of lending, funding or maintaining any Loan, or any reduction in any amount received or to be received by the Lender hereunder, due to either to: SPAR ESOP Revolving Credit Agreement
(i) the introduction of or any change following in any Applicable Law or the date hereof interpretation or administration thereof, including (without limitation) the imposition, modification or application of, or increase in, (A) any reserve, capital adequacy, special deposit, assessment or similar requirements, (B) any requirement to withhold or deduct from any amount payable to the Lender any taxes, levies, imposts, duties, fees, deductions, withholdings or charges of a similar nature (other than federal, state and local income and franchise taxes imposed upon the Lender), or any interest thereon or any penalties with respect thereto, imposed, levied, collected, assessed, withheld or deducted by any Authority, including subdivisions and taxing authorities thereof, or (C) any other restriction or condition affecting a Loan, the interest rate applicable thereto or this Agreement or any other Loan Instrument;
(ii) the compliance by the Lender with any regulation, guideline or request or change therein from any central Lender or other Authority (whether or not having the force of law);
(iii) therepayment, prepayment or other reduction, in whole or in part, of any Loan prior to the natural expiration of the applicable Interest Period, whether as a result of miscalculation, change in circumstance, consent of the Lender, acceleration of the Obligations or otherwise;
(iv) the failure by the Borrower to pay the accrued and unpaid interest on or repay the outstanding principal balance of any Loan, or any portion thereof, when required by the terms and provisions of this Agreement; or
(v) any increase in the Lender's cost of funds under the Senior Loan Documents, including (without limitation) any increase in interest rates or fees or any reimbursement to the Senior Lender of the kinds described in clauses (i) through (iv) of this subsection; then the Borrower from time to time, upon demand by the Lender, shall pay to the Lender additional amounts sufficient to indemnify the Lender against and reimburse it for such increased costs and reduced receipts (but only to the extent such increased cost or reduced receipt has not already been included in the calculation of any interest rate or fee or otherwise reimbursed under any other subsection of this Section), including (without limitation) amounts sufficient to compensate the Lender for any breakage or other costs and any decrease in margin or other return incurred in connection with the repayment, prepayment or other reduction of any Loan and the liquidation or redeployment of the affected deposits or other funding arrangements, in each case including, without limitation, any change and all amounts accrued, accruing or otherwise applicable during the pendency of any Bankruptcy Proceeding (irrespective of whether such interest, fees and other amounts are allowed or allowable as claims in any such proceeding). In the event the Senior Lender requires the payment of any similar amount under the Senior Loan Documents, the Lender may demand that the Borrower pay to the Lender or its Affiliate additional amounts sufficient to compensate it for the portion of such amount proportional to the ratio of the Loans to the Senior Loans. A certificate as to the amount of such increased costs and reduced receipts submitted to the Borrower by way the Lender shall be conclusive as to the existence and amount thereof absent manifest error. If the Lender has not received payment for such amounts within five (5) Business Days of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of such certificate, the Lender may apply all or a portion of the next succeeding payment or prepayment made by the Borrower, whether intended by the Borrower to be interest, principal or otherwise, first to the reduction of the amounts of such increased costs and reduced receipts.
(b) In addition to the payment of interest or fees under this Agreement, if the Lender or any of its Affiliates determines or has determined that (i) compliance with any existing or future Applicable Law, in each case whether foreign or domestic or including (iiwithout limitation) the compliance with any regulation, guideline or request following the date hereof from any central bank or other Official Body Authority (whether or not having the force of law), (A) there shall be or any increase change therein or in the cost to the Agentinterpretation or administration thereof, any Lender Agent, any Lender, successor affects or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan (or any reduction of would affect the amount of capital required or expected to be maintained by the Lender or its Affiliate (taking into account its policies with respect to capital adequacy and desired rate of return on capital), and (ii) the amount of such capital is increased by or based upon any commitment or funding to the Borrower or any other obligation of the Lender or its Affiliates under or related to this Agreement or any other Loan Instrument (using such averaging, attribution and allocation methods as the Lender may reasonably deem appropriate), then the Borrower from time to time, upon demand by the Lender, shall pay to the Lender or its Affiliate additional amounts sufficient to compensate it for those circumstances, in each case including, without limitation, any and all amounts accrued, accruing or otherwise applicable during the pendency of any Bankruptcy Proceeding (irrespective of whether such amounts are allowed or allowable as claims in any such proceeding). In the event the Senior Lender requires the payment of any similar amount under the Senior Loan Documents, the Lender may demand that the Borrower pay to the Lender or its Affiliate additional amounts sufficient to compensate it for the portion of such amount proportional to the ratio of the Loans to the Senior Loans. A certificate as to the amount of such compensation submitted to the Borrower by the Lender shall be conclusive as to the existence and amount thereof absent manifest error. If the Lender has not received payment for such amounts within five (5) Business Days of the date of such certificate, the Lender may apply all or a SPAR ESOP Revolving Credit Agreement portion of the next succeeding payment or prepayment made by the Borrower, whether intended by the Borrower to be interest, principal or otherwise, first to the reduction of such billed amount.
(c) In addition to the payment of increased costs and reduced receipts as provided in this Section (but without duplication of such amounts), as well as the payment of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), interest and fees as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each casestated elsewhere herein, the Borrower shallacknowledges and agrees that: in extending the Loans (rather than receiving a cash payment under the Stock Purchase Agreement) the Lender will be carrying a corresponding higher level of loans under the Senior Loan Documents; and accordingly, from time to time, after written upon demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverage), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the AgentLender, the Borrower shall pay to the Agent, Lender or its Affiliate additional amounts sufficient to compensate it for its pro rata share (based on the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate ratio of the applicable Affected Person setting forth then outstanding balance of the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered Loans to the then outstanding balance of the loans under the Senior Loan Documents) of any and all fees, costs, reimbursements, expenses or other amounts (other than principal and interest and without duplication of the amounts covered by subsections (a) and (b) of this Section) owed by any Senior Borrower and shall be conclusive absent manifest error. Notwithstanding anything to under the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shallSenior Loan Documents, in each casecase including, be deemed to be a change without limitation, any and all amounts accrued, accruing or adoption otherwise applicable during the pendency of any law, rule Bankruptcy Proceeding (irrespective of whether such amounts are allowed or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for allowable as claims in any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationshipproceeding).
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) there shall be any increase in the cost (other than Taxes) to the Agent, Administrative Agent or any Lender Agent, any Lender, or successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as ) or the case may beimposition of any other condition in connection therewith, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement Agreement, or under any other Transaction Document, (other than Taxes), or (C) any Recipient is Affected Party shall be subject to any Taxes Tax (other than (1x) Indemnified Taxes, (y) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (2z) Excluded Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.USActive 60058040.860058040.11 -79-
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party or such Affected Party’s holding company with any request or directive regarding liquidity coverage or capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty or on the capital of such Affected Party’s holding company, if any, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party or on the capital of such Affected Party’s holding company, if any, with respect to liquidity coverage or capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Administrative Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party or such Affected Party’s holding company for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.09, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(ed) With respect Failure or delay on the part of any Affected Party to any claim for demand compensation under pursuant to this Section 5.1 2.09 shall not constitute a waiver of such Affected Party’s right to demand or receive such compensation; provided that the Borrower shall not be required to compensate such any Affected Person Party pursuant to this Section 2.09 for any amount increased costs or reductions incurred more than 180 one hundred and eighty (180) days prior to the date that such Affected Person Party notifies the Borrower of the event that gives or circumstance giving rise to such claimincreased costs or reductions and of such Affected Party’s intention to claim compensation therefor; provided, further, that, if the event or circumstance in giving rise to such increased costs or reductions is retroactive, then the one hundred and eighty (180)-day period referred to above shall be extended to include the period of retroactive effect thereof.
(fe) An Affected Person shall not be entitled Notwithstanding anything herein to the contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all rules and regulations promulgated thereunder or issued in connection therewith and (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any compensation successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to this Section 5.1 Basel III, shall in each case be deemed to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).have USActive 60058040.860058040.11 -80-
Appears in 1 contract
Samples: Loan and Servicing Agreement (KKR Enhanced US Direct Lending Fund-L Inc.)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic Law or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost to the Agent, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Agent with a copy to the Collateral Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after on the Distribution Date immediately succeeding such demand; providedprovided that, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverage), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person with a copy to the Collateral Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall on the next applicable Distribution Date pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated after the date hereof in connection with the EU Retention Requirements shall, in each case, be deemed to be a change or adoption of such law, rule or regulation for purposes of this Section 5.1(b).
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor on the Distribution Date succeeding such demand therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower (with a copy to the Collateral Agent) and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent that such Affected Person is not imposing such charges or compensation on other borrowers under comparable credit facilities and similarly-situated to the Borrower.
(f) With respect to any claim for compensation under this Section 5.1 5.1, the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 1 contract
Samples: Loan and Servicing Agreement (AGL Private Credit Income Fund)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable LawLaw (including, without limitation, any law or regulation resulting in any interest payments paid to the Note Purchaser under this Agreement being subject to any tax, except for taxes on the overall net income of the Note Purchaser), in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) there shall be any increase in the cost to the Agent, the Note Purchaser, or any Lender Agent, any LenderAffiliate, successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) 10 days after such demand; provided, that the amounts payable under this Section 5.1 2.10 shall be without duplication of amounts payable under Section 4.32.11 and shall not include any Excluded Taxes.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 1 contract
Increased Costs Capital Adequacy. (a) IfSubject to the provisions of Section 2.10 (which shall be controlling with respect to the matters covered thereby), due to either in the event that any Affected Party shall determine (iwhich determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) the introduction of that any law, treaty or governmental rule, regulation or order, or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in therein or in the interpretation, administration or application arising following thereof (including the date hereof introduction of any Applicable Lawnew law, treaty or governmental rule, regulation or order), or any determination of a court or governmental authority, in each case whether foreign that becomes effective after the Closing Date, or domestic or (ii) the compliance by such Affected Party with any guideline guideline, request or request following directive issued or made after the Closing Date (or if later, the date hereof from such party becomes an Affected Party hereunder) by any central bank bank, accounting authority or other Official Body governmental or quasi governmental authority (whether or not having the force of law), ) (Ai) there shall be subjects such Affected Party (or its applicable lending office) to any increase in additional Tax (other than a Tax imposed on or measured by the cost net income or net profits of such Affected Party pursuant to the Agent, Laws of the jurisdiction in which it is organized or the jurisdiction in which the principal office or applicable lending office of such Affected Party is located or any Lender Agent, subdivision thereof or therein) with respect to this Agreement or any Lender, successor of the other Transaction Documents or assign thereof (each any of which shall be an “its obligations hereunder or thereunder or any payments to such Affected Person”) of agreeing to make or making, funding or maintaining any Loan Party (or any reduction of the amount of any payment (whether its applicable lending office) of principal, interest, feefees or any other amount payable hereunder; (ii) imposes, compensation modifies or otherwise) to holds applicable any Affected Person hereunderreserve (including any marginal, emergency, supplemental, special or other reserve), as special deposit, compulsory loan, FDIC insurance, risk based assessment or similar requirement against assets held by, or deposits or other liabilities in or for the case may beaccount of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Affected Party (B) there shall be other than any reduction such reserve or other requirements with respect to Advances that are reflected in the amount definition of LIBO Rate); or (iii) imposes any other condition (other than with respect to a Tax matter) on or affecting such Affected Party (or its applicable lending office) or its obligations hereunder or the London interbank market; and the result of any sum of the foregoing is to increase the cost to such Affected Party of agreeing to make, making or maintaining Advances hereunder or Support Advances with respect thereto or to reduce any amount received or receivable by an such Affected Person under this Agreement or under any other Transaction Document, or Party (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable applicable lending office) with respect thereto, ; then, in each any such case, the Borrower shall, from time to time, on each Settlement Date after written demand receipt by the Agent Borrower from such Affected Party of the statement referred to in the next sentence, shall pay in accordance with the Priority of Payments such additional amount or amounts (which demand in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Affected Party in its reasonable discretion shall determine) as may be accompanied by necessary to compensate such Affected Party for any such increased cost or reduction in amounts received or receivable hereunder. Such Affected Party shall deliver to the Borrower (with a statement copy to the Servicer and Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such demandAffected Party under this Section 2.09(a), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demandwhich statement shall be conclusive and binding upon all parties hereto absent manifest error; provided, that the amounts payable no Lender shall be entitled to compensation under this Section 5.1 shall be without duplication 2.09(a) for amounts incurred or reductions suffered more than 270 days prior to the date of amounts payable under Section 4.3delivery of such written statement.
(b) If either In the event that any Affected Party shall have determined that the adoption, effectiveness, phase in or applicability after the Closing Date (i) the introduction of or any change following if later, the date hereof in or in the interpretation, administration or application arising following the date hereof such party becomes an Affected Party hereunder) of any law, guideline, rule or regulationregulation (or any provision thereof) regarding liquidity or capital adequacy, directive or request any change therein or (ii) in the interpretation or administration thereof by any Governmental Authority, central bank, accounting authority or comparable agency charged with the interpretation or administration thereof, or compliance by any Affected Person Party (or its applicable lending office) with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy (whether or liquidity coveragenot having the force of law) of any such Governmental Authority, central bank, accounting authority or comparable agency, has or would have the effect of reducing the rate of return on the capital of such Affected Party or any Person controlling such Affected Person, Party as a consequence of its of, or with reference to, such Affected Party’s Advances, Commitments, Support Advances or related commitments or participations therein or other obligations hereunder or any related document or arising in connection herewith or therewith with respect to the Advances to a level below that which any such Affected Party or such controlling Person could have achieved but for such introductionadoption, effectiveness, phase in, applicability, change or compliance (taking into consideration the policies of such Affected Party or such controlling Person with respect regard to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person to be material, then, then from time to time, on each Settlement Date after demand receipt by the Borrower from such Affected Party of the statement referred to in the next sentence, the Borrower shall pay to such Affected Party in accordance with the Priority of Payments such additional amount or amounts as will compensate such Affected Party or such controlling Person on an after tax basis for such reduction. Such Affected Party shall deliver to the Borrower (which demand shall be accompanied by with a statement copy to the Servicer and the Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such demandAffected Party under this Section 2.09(b), which statement shall be conclusive and binding upon all parties hereto absent manifest error; provided, that no Affected Party shall be entitled to compensation under this Section 2.09(b) for amounts incurred or reductions suffered more than 270 days prior to the Borrower shall pay the Agent on behalf date of delivery of such written statement. In determining such amounts, the Affected Person such additional amounts as Party will compensate such Affected Person for such reductionact reasonably and in good faith and will use averaging and attribution methods which are reasonable.
(c) If as a result of any event or circumstance similar to those described in clause (a) or (b) of this Section 2.09, an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates Party is required to compensate a Funding Source or expected to maintain Support Provider in connection with this Agreement or the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment funding or maintenance of a reserve Advances or Commitments hereunder or related Support Advances or commitments, then from time to time, on each Settlement Date after receipt by the Borrower from such Affected Party of stable funding, a reduction the statement referred to in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agentnext sentence, the Borrower shall pay to the Agent, for the benefit of such Affected Person, Party in accordance with the Priority of Payments such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the additional amount or amounts as may be necessary to compensate reimburse such Affected Party for any such amounts paid by it. Such Affected Party shall deliver to the Borrower (with a copy to the Servicer and the Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Affected Person Party under this Section 5.1(c) shall be delivered to the Borrower and 2.09(c), which statement shall be conclusive and binding upon all parties hereto absent manifest error. ; provided, that no Affected Party shall be entitled to compensation under this Section 2.09(c) for amounts incurred or reductions suffered more than 270 days prior to the date of delivery of such written statement.
(d) Notwithstanding anything in this Agreement to the contrary contained hereincontrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines, requirements interpretations or directives thereunder, issued in connection therewith or in implementation thereof (whether or not having the force of law) and (y) all requests, rules, regulations, guidelines, interpretations or directives promulgated in connection with by the Retention Requirements shallBank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities (whether or not having the force of law), in each casecase pursuant to Basel III, shall be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), adopted and effective after the Closing Date regardless of the date enacted, adopted, issued issued, promulgated or implemented; provided, however, that the Borrower shall not be responsible implemented (including for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letterpurposes of this Section 2.09).
(de) In determining any amount provided for in this Section 5.1section, the Affected Person Party or its Funding Source or Support Provider may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 1 contract
Samples: Receivables Loan, Security and Servicing Agreement (Flowers Foods Inc)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost to the Facility Agent, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Facility Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Facility Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverage), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Increased Costs Capital Adequacy. (a) If, due to either (i) If after the introduction date of this Agreement the adoption of or any change following the date hereof (including, without limitation, in any change by way of imposition law or increase of reserve requirements) in regulation or in the interpretation, administration interpretation or application arising following the date hereof of thereof or compliance by any Applicable Law, in each case whether foreign or domestic or (ii) the compliance Bank with any guideline request or request following the date hereof from any central bank or other Official Body directive (whether or not having the force of law)) from any central bank or other Governmental Authority made subsequent to the date of this Agreement:
(i) shall subject any Bank to any tax of any kind whatsoever with respect to this Agreement, any Note, any Letter of Credit, any Application or any LIBOR Rate Loan made by it, or change the basis of taxation of payments to such Bank in respect thereof (except for (A) there shall be any increase in the cost to the Agent, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may beTaxes covered by Section 5.3, (B) there shall be net income taxes and franchise taxes imposed on such Bank as a result of a present or former connection between the jurisdiction of the government or taxing authority imposing such tax and such Bank other than a connection arising solely from such Bank having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement or any reduction Note and (C) changes in the amount rate of tax on the overall net income of such Bank);
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Bank that is not otherwise included in the determination of the LIBOR Rate hereunder (except for amounts covered by Section 4.5 or any other Section hereof); or
(iii) shall impose on such Bank any other condition; and the result of any sum received or receivable of the foregoing is to increase the actual cost to such Bank, by an Affected Person amount that such Bank deems to be material, of making, converting into, continuing or maintaining LIBOR Rate Loans or issuing or participating in Letters of Credit or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay such Bank, upon its demand in the manner set forth in Section 5.7(b), any additional amounts, computed by such Bank in accordance with Section 5.7(a), necessary to compensate such Bank 46 41
(a) from the Borrower, it shall promptly notify the Borrower, through the Agent, of the event by reason of which it has become so entitled in the manner set forth in Section 5.7(b).
(b) If any Bank determines in good faith that the introduction of or any change in or in the interpretation or application of any law or regulation regarding capital adequacy after the date of this Agreement or compliance by such Bank or any corporation controlling such Bank with any law or regulation or any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) made or issued after the date of this Agreement does or shall have the effect, as a result of such Bank's obligations under this Agreement or under any other Transaction DocumentLetter of Credit, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the such Bank's or such corporation's capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Bank or such corporation could have achieved but for such introduction, change or compliance (taking into consideration the such Bank's or such corporation's policies of such Affected Person with respect to capital adequacy and liquidity coverage), adequacy) by an amount deemed by such Affected Person Bank to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, Agent for the benefit account of such Affected PersonBank, from time to time as specified by such amount as will, Bank in the determination manner set forth in Section 5.7(b), additional amounts, computed by such Bank in accordance with Section 5.7(a), sufficient to compensate such Bank or such corporation in the light of such Affected Personcircumstances, compensate to the extent that such Affected Person therefor. A certificate Bank reasonably determines such reduction in rate of return is allocable to the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under existence of such Bank's obligations hereunder.
(c) The agreements contained in this Section 5.1(c) 5.1 shall be delivered to survive the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes termination of this Section 5.1(c), regardless Agreement and the payment of the date enacted, adopted, issued or implementedall amounts payable hereunder; provided, however, that in no event shall the Borrower shall not be responsible obligated to reimburse or compensate any Bank for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under amounts contemplated by this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than period prior to the date that is 180 days prior to the date that upon which such Affected Person notifies the Borrower of the event that gives rise to Bank requests in writing such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges reimbursement or compensation on other borrowers similarly situated to from the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)Borrower.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change that becomes effective following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable LawLaw (including, without limitation, any law or regulation resulting in any interest payments paid to any Lender under this Agreement being subject to any Tax, except for Indemnified Taxes and Excluded Taxes), in each case whether foreign or domestic domestic, including under Basel III or Xxxx-Xxxxx, or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) including under Basel III or Xxxx-Xxxxx, there shall be any increase in the cost to the Administrative Agent, any Lender, any Lender Agent, any LenderLiquidity Bank or any Affiliate, participant, successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) or there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or Agreement, under any other Transaction Document, Document or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each caseLiquidity Agreement, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), 75 DMSLIBRARY01\32370595.v1 on behalf of such Affected PersonParty, pay to the Administrative Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) 10 days after such demand; provided, provided that the amounts payable under this Section 5.1 2.10 shall be without duplication of amounts payable under Section 4.32.11 and shall not include any Excluded Taxes.
(b) If either (i) the introduction of or any change that becomes effective following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy adequacy, including under Basel III or liquidity coverageXxxx-Xxxxx, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demanddemand and certifying that such demand is being made as a general policy of such Affected Party in the majority of similar transactions in which such claim had or would have an impact on such Affected Party’s rate of return, capital requirements or other economic loss), the Borrower shall pay the Administrative Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction. For the avoidance of doubt, any increase in cost or reduction in Yield with respect to any Affected Party caused by regulatory capital allocation adjustments due to FAS 166, 167 and subsequent statements and interpretations shall constitute a circumstance on which such Affected Party may base a claim for reimbursement under this Section 2.10.
(c) If an Affected Person shall at as a result of any time event or circumstance similar to those described in clause (without regard to whether any Basel III Regulations a) or Xxxx-Xxxxx Regulations are then in effect(b) suffer or incur of this Section 2.10, (i) any explicit Affected Party is required to compensate a bank or implicit chargeother financial institution providing liquidity support, assessment, cost credit enhancement or expense by reason of the amount or type of assets, capital or supply of funding other similar support to such Affected Person or any of its Affiliates is required or expected to maintain Party in connection with this Agreement or the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment funding or maintenance of a reserve of stable fundingAdvances hereunder, a reduction in the amount of any sum received or receivable then within ten days after demand by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the AgentParty, the Borrower shall pay to the Agent, for the benefit of such Affected Person, Party such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the additional amount or amounts as may be necessary to compensate reimburse such Affected Party for any amounts payable or paid by it, or (ii) the Affected Person under this Section 5.1(cAdministrative Agent (whether in its own judgment or, if Citibank is no longer serving as Administrative Agent, at the request of the Majority Lenders) deems it necessary or appropriate to obtain a credit rating on the Revolving Notes and the Advances, the Borrower shall be delivered (x) provide (as promptly as possible and in any event no later than 60 days following receipt by the Borrower of such reasonable request) at least one Rating Agency designated by the Administrative Agent with all information and documents reasonably requested by such Rating Agency (to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything extent such information or documents are in the possession of or reasonably available to the contrary contained hereinBorrower) and otherwise cooperate with such Rating Agency’s review of the Transaction Documents and transactions contemplated hereby, all requestsand (y) pay the costs and expenses of such Rating Agency in respect of the rating of the Revolving Notes and the Advances. 76 DMSLIBRARY01\32370595.v1
(d) For avoidance of doubt, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption interpretation of any law, rule or regulation for purposes clause (a) and (b) of this Section 5.1(c)2.10, regardless of any regulatory changes, rules, guidelines or directives under or issued in connection with Basel III or Xxxx-Xxxxx will be considered as a “change” hereunder, and will not be treated as having been adopted or having come into effect before the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letterhereof.
(de) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Failure or delay on the part of any Affected Person shall not be entitled Party to any demand compensation pursuant to this Section 5.1 to the extent 2.10 shall not constitute a waiver of such Affected Person is not imposing Party’s right to demand or receive such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)compensation.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable LawLaw (including, without limitation, any law or regulation resulting in any payments paid under this Agreement or any other Transaction Document being subject to any Tax including by reason of any change to the basis or rate of taxation on any payments, except for Taxes on the overall net income of such party), in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) there shall be any increase in the cost to the Administrative Agent, any Lender, any Lender Agent, any LenderLiquidity Bank or any Affiliate, successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) or there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or Agreement, under any other Transaction Document, Document or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each caseLiquidity Agreement, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Administrative Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 2.09 shall be without duplication of amounts payable under Section 4.32.10; provided, further, that an Affected Party claiming additional amounts under this Section 2.09 agrees to use commercially reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate a different lending office if the making of such a designation would avoid the need for, or reduce the amount of, such increased cost that may thereafter accrue and would not, in the reasonable judgment of such Affected Party, be otherwise disadvantageous to such Affected Party.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Administrative Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction.
(c) If an as a result of any event or circumstance similar to those described in clause (a) or (b) of this Section 2.09, any Affected Person shall at any time (without regard Party is required to whether any Basel III Regulations compensate a bank or Xxxx-Xxxxx Regulations are then in effect) suffer other financial institution providing liquidity support, credit enhancement or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding other similar support to such Affected Person or any of its Affiliates is required or expected to maintain Party in connection with this Agreement or the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment funding or maintenance of a reserve of stable fundingAdvances hereunder, a reduction in the amount of any sum received or receivable then within ten days after demand by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the AgentParty, the Borrower shall pay to the Agent, for the benefit of such Affected Person, Party such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the additional amount or amounts as may be necessary to compensate the reimburse such Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible Party for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letteramounts payable or paid by it.
(d) In determining any amount provided for in this Section 5.12.09, the Affected Person Party may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.09, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect Failure or delay on the part of any Affected Party to any claim for demand compensation under pursuant to this Section 5.1 2.09 shall not constitute a waiver of such Affected Party’s right to demand or receive such compensation; provided, however, that the Borrower shall not be required to compensate such Affected Person responsible for any amount incurred costs under this Section 2.09 arising more than 180 90 days prior to the date that such Affected Person notifies receipt by the Borrower of the event that gives rise to such claim.
(f) An demand from the Affected Person shall not be entitled to any compensation Party pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)2.09.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve or liquidity requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable LawLaw (including, without limitation, any law or regulation resulting in any payments paid to any Lender under this Agreement being subject to any Tax, except for Taxes on the overall net income of such Lender), in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) there shall be any increase in the cost to the Administrative Agent, any Lender Agentor any Affiliate, any Lenderparticipant, successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) or there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Administrative Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) 10 days after such demand; provided, provided that the amounts payable under this Section 5.1 2.10 shall be without duplication of amounts payable under Section 4.32.11 and shall not include any Excluded Taxes.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance 55 by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Administrative Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction. For the avoidance of doubt, any increase in cost and/or reduction in Yield with respect to any Affected Party caused by regulatory capital allocation adjustments due to FAS 166, 167 and subsequent statements and interpretations shall constitute a circumstance on which such Affected Party may base a claim for reimbursement under this Section 2.10.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(ed) With respect Failure or delay on the part of any Affected Party to any claim for demand compensation under pursuant to this Section 5.1 2.10 shall not constitute a waiver of such Affected Party’s right to demand or receive such compensation; provided that the Borrower shall not be required to compensate such Affected Person Party pursuant to this Section 2.10 for any amount increased costs incurred or reductions suffered more than 180 days nine months prior to the date that such Affected Person Party notifies the Borrower of the event that gives any change set forth in clauses (a) and (b) above giving rise to such claimincreased costs or reductions and of such Affected Party’s intention to claim compensation therefor (except that, if such change giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).
(e) If at any time the Borrower shall be liable for the payment of any additional amounts in accordance with this Section 2.10, then the Borrower shall have the option to terminate this Agreement (in accordance with the provisions of Section 2.18(b) but without the payment of any Make-Whole Premium); provided that such option to terminate shall in no event relieve the Borrower of paying any amounts owing pursuant to this Section 2.10 in accordance with the terms hereof.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 Notwithstanding anything herein to the extent such Affected Person is not imposing such charges contrary, the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all rules and regulations promulgated thereunder or compensation on other borrowers similarly situated issued in connection therewith shall be deemed to have been introduced after the Closing Date, thereby constituting a change for which a claim for increased costs or additional amounts may be made hereunder with respect to the Borrower hereunder under comparable credit facilities (it being understood that Affected Parties, regardless of the amount of such additional date enacted, adopted or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)issued.
Appears in 1 contract
Samples: Loan and Servicing Agreement
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof Closing Date (including, including without limitation, limitation any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof Closing Date of any Applicable LawLaw (including without limitation any law or regulation resulting in any interest payments paid to the Lender under this Agreement being subject to any Tax, except for Taxes on the overall net income of the Lender), in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof Closing Date from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) there shall be any increase in the cost to the Administrative Agent, the Lender or any Affiliate, participant (provided that a participant shall not be entitled to receive any greater payment under this Section 2,10 than the Lender Agent, any Lenderwould have been entitled to receive with respect to the participation sold to such participant), successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) or there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each caseAgreement, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
a. If a payment made to the Lender hereunder would be subject to United States federal withholding Tax imposed by FATCA if the Lender fails to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), the Lender shall deliver to the Borrower and Administrative Agent documentation reasonably requested by the Borrower and Administrative Agent sufficient for the Borrower and Administrative Agent to comply with their obligations under FATCA and to determine that the Lender has complied with such applicable reporting requirements.
b. If the Administrative Agent or the Lender determines, in its sole discretion, that it has received a refund or credit (in lieu of such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30refund) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule amounts as to which it has been indemnified by a Borrower or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverage), by an amount deemed by which such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person such has paid additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard pursuant to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit chargethis Section 2,11, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the AgentBorrower an amount equal to such refund (but only to the extent of indemnity payments made, for or additional amounts paid, by the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person Borrower under this Section 5.1(c2,11 with respect to the amounts giving rise to such refund), together with any interest paid by the relevant Governmental Authority with respect to such refund; provided that the Borrower, upon the request of the Administrative Agent or the Lender, agrees to repay as soon as reasonably practicable the amount paid over to such Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or the Lender in the event the Administrative Agent or the Lender is required to repay such refund to such Governmental Authority. This subsection shall not be delivered construed to require the Administrative Agent or the Lender to make available its Tax returns or its books or records (or any other information relating to its Taxes that it deems confidential) to the Borrower and shall be conclusive absent manifest erroror any other Person. Notwithstanding anything Without prejudice to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption survival of any law, rule or regulation for purposes of this Section 5.1(c), regardless other agreement of the date enactedBorrower and the Servicer hereunder, adoptedthe agreements and obligations of the Borrower, issued or implemented; providedthe Servicer, however, that the Borrower shall not be responsible for any increased costs relating to Administrative Agent and the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for Lender contained in this Section 5.1, 2,11 shall survive the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf termination of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest errorAgreement.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 1 contract
Samples: Amendment No. 8 (Ares Capital Corp)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof Fifth Amendment Effective Date (or, with respect to the Agent (so long as Xxxxx Fargo is the Agent) and Xxxxx Fargo, the Restatement Date) (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof Fifth Amendment Effective Date (or, with respect to the Agent (so long as Xxxxx Fargo is the Agent) and Xxxxx Fargo, the Restatement Date) of any Applicable LawLaw (including, without limitation, any law or regulation resulting in any interest payments paid to any Lender under this Agreement being subject to any Tax, except for Taxes on the overall net income of such Lender), in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof Fifth Amendment Effective Date (or, with respect to the Agent (so long as Xxxxx Fargo is the Agent) and Xxxxx Fargo, the Restatement Date) from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) there shall be any increase in the cost to the Agent, any Lender, or any Affiliate, participant (provided that a participant shall not be entitled to receive any greater payment under this Section 2.10 than the Lender Agent, any Lenderwould have been entitled to receive with respect to the participation sold to such participant), successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) 10 days after such demand; provided, provided that the amounts payable under this Section 5.1 2.10 shall be without duplication of amounts payable under Section 4.32.11 and shall not include any Indemnified Taxes or Excluded Taxes.
(b) If either (i) the introduction of or any change following the date hereof Fifth Amendment Effective Date (or, with respect to the Agent (so long as Xxxxx Fargo is the Agent) and Xxxxx Fargo, the Restatement Date) in or in the interpretation, administration or application arising following the date hereof Fifth Amendment Effective Date (or, with respect to the Agent (so long as Xxxxx Fargo is the Agent) and Xxxxx Fargo, the Restatement Date) of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereofFifth Amendment Effective Date (or, with respect to the Agent (so long as Xxxxx Fargo is the Agent) and Xxxxx Fargo, the Restatement Date), from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction.
; provided that, notwithstanding anything in this Section 2.10(b) to the contrary, (cx) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or the Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower Xxxx Street Reform and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, Consumer Protection Act and all requests, rules, guidelinesguidelines or directives thereunder or issued in connection therewith and (y) all requests, requirements and rules, guidelines or directives promulgated in connection with by the Retention Requirements shallBank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each casecase pursuant to Basel III, shall in each case be deemed to be a “change or adoption of any in law, rule or regulation ” for the purposes of this Section 5.1(c)clause (i) above, regardless of the date enacted, adoptedadopted or issued. For the avoidance of doubt, issued if the issuance of any amendment or implemented; providedsupplement to Interpretation No. 46 or to Statement of Financial Accounting Standards No. 140 by the Financial Accounting Standards Board, howeveror the issuance of any other pronouncement, that release or interpretation, causes or requires the consolidation of all or a portion of the assets and liabilities of the Transferor, the Borrower shall not be responsible for or any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance Secured Party with the requirements set forth assets and liabilities of the Agent or any Lender and, as a result, imposes any loss, cost, expense, reduction of return on capital or other loss, such event shall constitute a circumstance on which such Indemnified Party may base a claim for reimbursement under this Section 2.10. For the further avoidance of doubt, any increase in the Retention Lettercost and/or reduction in Yield with respect to any Affected Party caused by regulatory capital allocation adjustments due to Financial Accounting Standards Nos. 166, 167 and subsequent statements and interpretations shall constitute a circumstance on which such Affected Party may base a claim for reimbursement under this Section 2.10.
(dc) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(ed) With respect to any claim for compensation The payment of amounts under this Section 5.1 the Borrower 2.10 shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claimon an after Tax basis.
(fe) An Affected Person shall not be entitled Notwithstanding anything to the contrary herein, the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith, and all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any compensation successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to this Section 5.1 Basel III, shall in each case be deemed to be a change in Applicable Law for purposes of clause (a) above, regardless of the extent such Affected Person is not imposing such charges date enacted, adopted or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)issued.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof Original Closing Date (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable LawLaw (including, without limitation, any Applicable Law resulting in any interest payments paid to any Lender under this Agreement being subject to any Tax, except for Excluded Taxes), in each case case, whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) there shall be any increase in the cost to the Administrative Agent, any Lender, any Lender Agent, any LenderLiquidity Bank or any Affiliate, participant, successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) or there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or Agreement, under any other Transaction Document, Document or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each caseLiquidity Agreement, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Administrative Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) 10 days after such demand; provided, that the amounts payable under this Section 5.1 2.10 shall be without duplication of amounts payable under Section 4.32.11 and shall not include any Excluded Taxes.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request Applicable Law or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Administrative Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction. For the avoidance of doubt, any increase in cost and/or reduction in Yield with respect to any Affected Party caused by regulatory capital allocation adjustments due to FAS 166, 167 and subsequent statements and -55- interpretations shall constitute a circumstance on which such Affected Party may base a claim for reimbursement under this Section 2.10.
(c) If an as a result of any event or circumstance similar to those described in clause (a) or (b) of this Section 2.10, any Affected Person shall at any time (without regard Party is required to whether any Basel III Regulations compensate a bank or Xxxx-Xxxxx Regulations are then in effect) suffer other financial institution providing liquidity support, credit enhancement or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding other similar support to such Affected Person or any of its Affiliates is required or expected to maintain Party in connection with this Agreement or the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment funding or maintenance of a reserve of stable fundingAdvances hereunder, a reduction in the amount of any sum received or receivable then within ten days after demand by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the AgentParty, the Borrower shall pay to the Agent, for the benefit of such Affected Person, Party such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the additional amount or amounts as may be necessary to compensate the reimburse such Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible Party for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letteramounts payable or paid by it.
(d) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect Failure or delay on the part of any Affected Party to any claim for demand compensation under pursuant to this Section 5.1 the Borrower 2.10 shall not be required to compensate constitute a waiver of such Affected Person for any amount incurred more than 180 days prior Party’s right to the date that demand or receive such Affected Person notifies the Borrower of the event that gives rise to such claimcompensation.
(f) An Affected Person If at any time the Borrower shall not be entitled liable for the payment of any additional amounts in accordance with this Section 2.10, then the Borrower shall have the option to terminate this Agreement (in accordance with the provisions of Section 2.18(b) but without the payment of any compensation Make-Whole Premium); provided, that such option to terminate shall in no event relieve the Borrower of paying any amounts owing pursuant to this Section 5.1 2.10 in accordance with the terms hereof.
(g) Notwithstanding anything herein to the extent such Affected Person is not imposing such charges contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all rules and regulations promulgated thereunder or compensation issued in connection therewith and (ii) any law, request, rule, guideline or directive promulgated by the Bank of International Settlements, the Basel Committee on other borrowers similarly situated Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III shall, in each case, be deemed to have been introduced after the Original Closing Date, thereby constituting a change for which a claim for increased costs or additional amounts may be made hereunder with respect to the Borrower hereunder under comparable credit facilities (it being understood that Affected Parties, regardless of the amount of such additional date enacted, adopted or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)issued.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Business Development Corp of America)
Increased Costs Capital Adequacy. (a) IfIn the event of the adoption after the Date of Issuance of any law, due to either rule or regulation (i) the introduction of domestic or foreign), or any change following after the date hereof (includingDate of Issuance in any law, without limitationrule or regulation, or the interpretation or application thereof by any change by way of imposition court, governmental authority, central bank or increase of reserve requirements) in comparable authority charged with the enforcement or in the interpretation, administration or application arising following the date hereof of any Applicable Lawinterpretation thereof, in each case whether foreign or domestic or (ii) the compliance with any guideline guidelines or request following the date hereof from any governmental authority, central bank or other Official Body comparable authority (whether or not having the force of law):
(i) subjects the Bank or any Participant Bank to any tax, deduction or withholding with respect to this Agreement, the Fee Agreement, the Letter of Credit, the Bonds or the Bank Bond (other than any tax based upon the overall net income of the Bank or such Participant Bank), or
(Aii) there shall be imposes, modifies or deems applicable any reserve, liquidity ratio, special deposit, compulsory loan, insurance premium (including any assessment or other cost imposed by the Federal Deposit Insurance Corporation or any successor thereto) or similar requirement against credits (including letters of credit) or commitments to extend credit extended by, or assets (funded or contingent) held by, or deposits with or for the account of, or loans by, or other acquisitions of funds or bonds by, the Bank or any Participant Bank, or
(iii) imposes upon the Bank or any Participant Bank any other condition or expense with respect to this Agreement, the commitment or obligations of the Bank or such Participant Bank hereunder, the Fee Agreement, the Letter of Credit or any Bank Bond, and the result of any of the foregoing is to increase in the cost to the AgentBank or such Participant Bank, reduce the income receivable by the Bank or the Participant Bank, impose any Lender Agent, any Lender, successor expense upon the Bank or assign thereof (each of which shall be an “Affected Person”) of agreeing to make such Participant Bank or making, funding or maintaining any Loan (or any reduction of reduce the amount of any payment receivable by the Bank or such Participant Bank, with respect to this Agreement, the Fee Agreement, the Letter of Credit or the Bank Bond, as reasonably determined and allocated by the Bank or such Participant Bank, by an amount which the Bank or such Participant Bank deems to be material, the Bank shall notify the City thereof by delivery of a certificate of an officer of the Bank or such Participant Bank of the nature described in the next sentence, and the City shall pay or cause to be paid to the Bank promptly, and in any event within thirty (30) days after receipt of such notice, that amount which shall compensate the Bank or such Participant Bank (on an after tax basis, grossing up to cover any taxes payable by the Bank or such Participant Bank on such amount) for such increase in cost, reduction in income, additional expense or reduced amount. A certificate setting forth such increase in cost, reduction in income or additional expense or reduced amount (including such detail as the City may reasonably request), and the manner of calculating the same as determined by the Bank or such Participant Bank, shall be submitted by the Bank to the City and, absent manifest error, shall be conclusive as to the amount thereof; provided however, the City shall not be obligated to pay such costs incurred before 180 days prior to the notification thereof, except where (i) the Bank or Participant Bank, as applicable, had no actual knowledge of the action resulting in such increased costs, increased capital or reduction in the rate of return, as applicable, as of the date which is 180 days prior to the notification thereof or (ii) such increased costs, increased capital or reduction in the rate of return apply to the Bank or Participant Bank retroactively to a date prior to the date which is 180 days prior to the notification thereof. In making the determinations contemplated by the above referenced certificate, the Bank or such Participant Bank may make such reasonable estimates, assumptions, allocations and the like that the Bank or such Participant Bank in good faith determines to be appropriate.
(b) If the Bank or any Participant Bank shall have determined that the adoption after the Date of Issuance of any law, rule, regulation or guideline (whether or not having the force of principallaw) regarding liquidity as well as capital adequacy, interestor any change in any applicable law, feerule, compensation regulation or otherwise) to any Affected Person hereunder)guideline, as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretationenforcement or interpretation or administration thereof by any court or any administrative or governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by the Bank or any Affected Person with Participant Bank (or any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person lending office thereof) with any request or directive regarding liquidity as well as capital adequacy (whether or liquidity coveragenot having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the capital of any Affected Person, the Bank or such Participant Bank as a consequence of its rights or obligations hereunder hereunder, the Fee Agreement, under the Letter of Credit or any related document or arising in connection herewith or therewith with respect to the Bank Bond to a level below that which any the Bank or such Affected Person Participant Bank could have achieved but for such introductionadoption, change or compliance (taking into consideration the policies of the Bank or such Affected Person Participant Bank with respect to liquidity and capital adequacy and liquidity coverage), adequacy) by an amount deemed by such Affected Person the Bank to be material, thenthe Bank shall notify the City thereof by delivery of a certificate of an officer of the Bank of the nature described in the next sentence, from time and the City shall pay or cause to timebe paid to the Bank promptly, and in any event within thirty (30) days after demand receipt of such notice, that amount which shall compensate the Bank or such Participant Bank (on an after tax basis, grossing up to cover any taxes payable by the Bank or such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis Participant Bank on such amount) for such demand)reduction in rate of return on capital; provided however, the Borrower City shall not be obligated to pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person compensation for such reduction.
(c) If an Affected Person shall at any time (without regard a period in excess of 180 days prior to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur the notification thereof, except where (i) any explicit the Bank or implicit chargeParticipant Bank, assessmentas applicable, cost or expense by reason had no actual knowledge of the amount or type of assetsaction resulting in such increased costs, increased capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capitalreturn, an inherent cost of the establishment or maintenance of a reserve of stable fundingas applicable, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder which is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).notification thereof or
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof Original Closing Date (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof Original Closing Date of any Applicable LawLaw (including, without limitation, any law or regulation resulting in any interest payments paid to any Lender under this Agreement being subject to any Tax, except for Taxes on the overall net income of such Lender), in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof Original Closing Date from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) there shall be any increase in the cost to the Administrative Agent, any Lender, any Lender Agent, any LenderLiquidity Bank or any Affiliate, participant, successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) or there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or Agreement, under any other Transaction Document, Document or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each caseLiquidity Agreement, the Borrower shall, from time to time, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Administrative Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) 10 days after such demand; provided, that the amounts payable under this Section 5.1 2.10 shall be without duplication of amounts payable under Section 4.32.11 and shall not include any Excluded Taxes.
(b) If either (i) the introduction of or any change following the date hereof Original Closing Date in or in the interpretation, administration or application arising following the date hereof Original Closing Date of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereofOriginal Closing Date, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageliquidity, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Administrative Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reduction. For the avoidance of doubt, any increase in cost and/or reduction in Yield with respect to any Affected Party caused by regulatory capital allocation adjustments due to FAS 166, 167 and subsequent statements and interpretations shall constitute a circumstance on which such Affected Party may base a claim for reimbursement under this Section 2.10.
(c) If an as a result of any event or circumstance similar to those described in clause (a) or (b) of this Section 2.10, any Affected Person shall at any time (without regard Party is required to whether any Basel III Regulations compensate a bank or Xxxx-Xxxxx Regulations are then in effect) suffer other financial institution providing liquidity support, credit enhancement or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding other similar support to such Affected Person or any of its Affiliates is required or expected to maintain Party in connection with this Agreement or the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment funding or maintenance of a reserve of stable fundingAdvances hereunder, a reduction in the amount of any sum received or receivable then within ten days after demand by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the AgentParty, the Borrower shall pay to the Agent, for the benefit of such Affected Person, Party such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the additional amount or amounts as may be necessary to compensate the reimburse such Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible Party for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letteramounts payable or paid by it.
(d) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect Failure or delay on the part of any Affected Party to any claim for demand compensation under pursuant to this Section 5.1 the Borrower 2.10 shall not be required to compensate constitute a waiver of such Affected Person for any amount incurred more than 180 days prior Party’s right to the date that demand or receive such Affected Person notifies the Borrower of the event that gives rise to such claimcompensation.
(f) An Affected Person If at any time the Borrower shall not be entitled liable for the payment of any additional amounts in accordance with this Section 2.10, then the Borrower shall have the option to terminate this Agreement (in accordance with the provisions of Section 2.18(b) but without the payment of any compensation Make-Whole Premium); provided that such option to terminate shall in no event relieve the Borrower of paying any amounts owing pursuant to this Section 5.1 2.10 in accordance with the terms hereof.
(g) Notwithstanding anything herein to the extent such Affected Person is not imposing such charges contrary, (i) the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act and all rules and regulations promulgated thereunder or compensation issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank of International Settlements, the Basel Committee on other borrowers similarly situated Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel II or Basel III, shall in each case be deemed to have been introduced after the Original Closing Date, thereby constituting a change for which a claim for increased costs or additional amounts may be made hereunder with respect to the Borrower hereunder under comparable credit facilities (it being understood that Affected Parties, regardless of the amount of such additional date enacted, adopted or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)issued.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Golub Capital BDC, Inc.)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof interpretation of any Applicable Lawlaw or regulation (including, without limitation, any law or regulation resulting in each case whether foreign or domestic any interest payments paid to a Lender under this Agreement being subject to United States withholding tax) or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body governmental authority (whether or not having the force of law), (A) there shall be any increase in the cost to the Agent, the Lender, or any Lender Agent, any LenderAffiliate, successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, within ten days after written demand complying with Section 2.13(c) by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand)Agent, on behalf of such Affected PersonParty, pay to the Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3payments.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof interpretation of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body bank or agencyother governmental authority or agency (whether or not having the force of law), including, without limitation, compliance by an Affected Person Party with any request or directive regarding capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for of such demand), the Borrower Agent shall pay the Agent be paid, on behalf of such Affected Person Party (from Collections with respect to Pledged Receivables pursuant to, and subject to the priority of payment set forth in, Section 2.05), such additional amounts as will compensate such Affected Person Party for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.12.13, the Affected Person Party may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.13, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest demonstrable error.
(ed) With respect If, as a result of any event or circumstance similar to those described in Section 2.13(a) or 2.13(b), any claim for compensation under Affected Party (that is an Issuer or a Lender) is required to compensate a bank or other financial institution (including, without limitation, HVB) providing liquidity support, credit enhancement or other similar support to such Affected Party in connection with this Section 5.1 Agreement, then, upon demand by the Agent, on behalf of such Affected Party, the Borrower shall not be required pay, in accordance with Section 2.05, to compensate the Agent, on behalf of such Affected Person Party such additional amount or amounts as may be necessary to reimburse such Affected Party for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claimamounts paid by it.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.)
Increased Costs Capital Adequacy. (a) IfIf after the Closing Date, due to either (i) any Lender, the introduction of Agent, any Funding Source or any change following of their respective Affiliates (each an “Affected Party”) shall be charged or shall incur any fee, expense, increased reserve requirement or other increased cost on account of the date hereof adoption or implementation of any applicable law, rule or regulation or any accounting principle (including, without limitation, any applicable law, rule or regulation or accounting principle regarding or affecting capital adequacy) or any change by way of imposition therein, or increase of reserve requirements) in or any change in the interpretationinterpretation or administration thereof by any Governmental Authority or accounting body charged with the interpretation or administration thereof, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline request or request following the date hereof from any central bank or other Official Body directive (whether or not having the force of law)) of any such Governmental Authority or accounting body (a “Regulatory Change”): (i) which subjects any Affected Party to any charge or withholding on or with respect to any Funding Agreement or an Affected Party’s obligations under a Funding Agreement, or on or with respect to the Assets, or changes the basis of taxation of payments to any Affected Party of any amounts payable under any Funding Agreement (Aexcept for changes in the rate of tax on the overall net income of an Affected Party) there shall be or (ii) which imposes, modifies or deems applicable any reserve, assessment, fee, tax, insurance charge, special deposit or similar requirement against assets of, deposits with or for the account of an Affected Party, or credit extended by an Affected Party pursuant to a Funding Agreement or (iii) which imposes any other condition the result of which is to increase in the cost to an Affected Party of performing its obligations under a Funding Agreement, or to reduce the Agentrate of return on an Affected Party’s capital as a consequence of its obligations under a Funding Agreement, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in reduce the amount of any sum received or receivable by an Affected Person Party under this a Funding Agreement or under to require any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand payment calculated by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverage), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum interests or loans held or interest received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulationsit, then, upon demand by or on behalf the Agent by the submission of such Affected Person through the Agentcertificate described below, the Borrower Borrowers shall pay to the Agent, for the benefit of such the relevant Affected PersonParty, such amount amounts as will, in the determination of such Affected Person, are necessary to compensate such Affected Person thereforParty for such increased cost, reduction or payment. A certificate of from the applicable relevant Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate Party setting forth in reasonable detail the basis for and amounts so required to compensate such Affected Party submitted to the computations of such additional or increased costs, which certificate Borrowers shall be conclusive and binding for all purposes, absent manifest error.
(eb) With respect to [Reserved].
(c) If any claim for Affected Party requests compensation under this Section 5.1 2.10, or the Borrower shall not be Borrowers are required to compensate such Affected Person for pay any additional amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation Lender, any Funding Source or any Governmental Authority for the account of such Lender or Funding Source pursuant to Section 2.11, then such Lender or such Funding Source shall use reasonable efforts to designate a different lending office for funding or booking its Advances hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender or such Funding Source, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to this Section 5.1 2.10 or Section 2.11, as the case may be, in the future, or eliminate the need for the notice pursuant to the extent Section 2.10(b), as applicable, and (ii) in each case, would not subject such Affected Person is Lender or such Funding Source to any unreimbursed cost or expense and would not imposing otherwise be disadvantageous to such charges Lender or compensation on other borrowers similarly situated such Funding Source. The Borrowers hereby agree to the Borrower hereunder under comparable credit facilities (it being understood that the amount of pay all reasonable costs and expenses incurred by such additional Lender or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)such Funding Source in connection with any such designation or assignment.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the Existing Effective Date (with respect to DBNY or any Lender to which DBNY assigns any outstanding Advance) and the date hereof that a Lender becomes a Lender hereunder (with respect to such other Lender, such date, a “Lender Effective Date”) (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof Existing Effective Date or the Lender Effective Date, as applicable, of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof Existing Effective Date or Lender Effective Date, as applicable, from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost to the Agent, any Lender Administrative Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (2C) Excluded Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligationsobligations under this Agreement, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to timetime but subject to Section 8.3, after written demand by the Administrative Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand, together with documents evidencing the same), on behalf of such Affected Person, pay to the Administrative Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof Existing Effective Date or Lender Effective Date, as applicable, in or in the interpretation, administration or application arising following the date hereof Existing Effective Date or Lender Effective Date, as applicable, of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereofExisting Effective Date, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and or liquidity coverage), by an amount deemed by such Affected Person to be material, then, from time to timetime but subject to Section 8.3, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand, together with documents evidencing the same), the Borrower shall pay the Administrative Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxx Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital capital, liquidity or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise otherwise, or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxx Xxxxx Regulations, then, subject to Section 8.3, upon demand by or on behalf of such Affected Person through the Administrative Agent, the Borrower shall pay to the Administrative Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Administrative Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect ; provided, however that no Lender shall be requested to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 disclose confidential information to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)prohibited by law.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) IfSubject to the provisions of Section 4.11 (which shall be controlling with respect to the matters covered thereby), due to either in the event that any Lender shall determine (iwhich determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) the introduction of that any law, treaty or governmental rule, regulation or order, or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in therein or in the interpretation, administration or application arising following thereof (including the date hereof introduction of any Applicable Lawnew law, treaty or governmental rule, regulation or order), or any determination of a court or Governmental Authority, in each case whether foreign that becomes effective after the date hereof, or domestic or (ii) the compliance by such Lender with any guideline guideline, request or request following directive issued or made after the date hereof from by any central bank or other Official Body governmental or quasi-governmental authority (whether or not having the force of law), ): (Ai) there shall be any increase in the cost to the Agent, any subjects such Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan (or its applicable lending office) to any reduction additional tax (other than any tax on the overall net income of such Lender or withholding taxes payable in respect of interest or fees hereunder) with respect to this Agreement or any of the amount other Loan Documents or any of its obligations hereunder or thereunder or any payment payments to such Lender (whether or its applicable lending office) of principal, interest, feefees or any other amount payable hereunder; (ii) imposes, compensation modifies or otherwise) to holds applicable any Affected Person hereunderreserve (including any marginal, emergency, supplemental, special or other reserve), as special deposit, compulsory loan, FDIC insurance or similar requirement against assets held by, or deposits or other liabilities in or for the case may beaccount of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender (Bother than any such reserve or other requirements with respect to Eurodollar Loans that are reflected in the definition of Eurodollar Rate); or (iii) there imposes any other condition (other than with respect to a tax matter, which shall be any reduction in subject to the amount provisions of Section 4.11) on or affecting such Lender (or its applicable lending office) or its obligations hereunder or the London interbank market; and the result of any sum of the foregoing is to increase the cost to such Lender of agreeing to make, making or maintaining Loans hereunder or to reduce any amount received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or such Lender (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable applicable lending office) with respect thereto, ; then, in each any such case, Borrower shall promptly pay to such Lender, upon receipt of the statement referred to in the next sentence, such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its sole discretion shall determine) as may be necessary to compensate such Lender for any such increased cost or reduction in amounts received or receivable hereunder. Such Lender shall deliver to Borrower shall(with a copy to Administrative Agent) a written statement, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to calculating the Agent, on behalf of such Affected Person, additional amounts sufficient owed to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable Lender under this Section 5.1 4.10(a), which statement shall be without duplication of amounts payable under Section 4.3conclusive and binding upon all parties hereto absent manifest error.
(b) If either (i) In the introduction of or event that any change following Lender shall have determined that the date hereof adoption, effectiveness, phase-in or in applicability after the interpretation, administration or application arising following the date hereof Closing Date of any law, guideline, rule or regulationregulation (or any provision thereof) regarding capital adequacy, directive or request any change therein or (ii) in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Affected Person Lender (or its applicable lending office) with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy (whether or liquidity coveragenot having the force of law) of any such Governmental Authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the capital of such Lender or any Affected Person, corporation controlling such Lender as a consequence of its of, or with reference to, such Lender's Loans or Revolving Commitments, or participations therein or other obligations hereunder or any related document or arising in connection herewith or therewith with respect to the Loans to a level below that which any such Affected Person Lender or such controlling corporation could have achieved but for such introductionadoption, effectiveness, phase-in, applicability, change or compliance (taking into consideration the policies of such Affected Person Lender or such controlling corporation with respect regard to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person to be material, then, then from time to time, within five Business Days after demand receipt by the Borrower from such Affected Person Lender of the statement referred to in the next sentence, Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling corporation on an after-tax basis for such reduction. Such Lender shall deliver to Borrower (which demand shall be accompanied by with a statement copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for such demand), calculating the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard owed to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person Lender under this Section 5.1(c) shall be delivered to the Borrower and 4.10(b), which statement shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, and binding upon all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive parties hereto absent manifest error.
(ec) With respect Failure or delay on the part of any Lender to any claim for demand compensation under pursuant to this Section 5.1 shall not constitute a waiver of such Lender's right to demand such compensation; provided that the Borrower shall not be required to compensate such Affected Person a Lender pursuant to this Section for any amount increased costs or reductions incurred more than 180 days prior to the date that such Affected Person Lender notifies the Borrower of the event that gives change giving rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges increased costs or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount reductions and of such additional Lender's intention to claim compensation therefor; provided further that, if the change giving rise to such increased costs or increased cost between similarly situated borrowers may reductions is retroactive, then the 180-day period referred to above shall be different after consideration extended to include the period of facility pricing, structure, usage patterns, capital treatment and banking relationship)retroactive effect thereof.
Appears in 1 contract
Samples: Credit Agreement (Del Frisco's Restaurant Group, LLC)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof Closing Date (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof Closing Date of any Applicable Law, Law in each case whether foreign or domestic or (ii) the compliance by an Affected Party with any guideline or request following the date hereof Closing Date from any central bank or other Official Body Governmental Authority (whether or not having the force of law), (A) there shall be any increase in the cost to the Agent, any Lender Facility Agent, any Lender, participant thereof (provided that a participant shall not be entitled to receive any greater payment under this Section 2.10 than the Lender would have been entitled to receive with respect to the participation sold to such participant), successor or assign thereof (each of which shall be an “Affected PersonParty”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person Party hereunder), as the case may be, (B) or there shall be any reduction in the amount of any sum received or receivable by an Affected Person Party under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Facility Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected PersonParty, pay to the Facility Agent, on behalf of such Affected PersonParty, additional amounts sufficient to compensate such Affected Person Party for such increased costs or reduced payments within thirty (30) days after such demandin accordance with the priority of payments set forth in Section 2.04; provided, provided that the amounts payable under this Section 5.1 2.10(a) shall be without duplication of amounts payable under Section 4.3not apply to any Indemnified Taxes or Excluded Taxes.
(b) If either (i) the introduction of or any change following the date hereof Closing Date (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof Closing Date of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any -74- Affected Person Party with any law, guideline, rule, regulation, directive or request following the date hereofClosing Date, from any central bank, any Official Body Governmental Authority or agency, including, without limitation, compliance by an Affected Person Party with any request or directive regarding liquidity or capital adequacy or liquidity coverageadequacy, has or would have the effect of reducing the rate of return on the capital of any Affected PersonParty, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person Party with respect to capital adequacy and liquidity coverageadequacy), by an amount deemed by such Affected Person Party to be material, then, from time to time, after demand by such Affected Person Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Facility Agent on behalf of such Affected Person Party such additional amounts as will compensate such Affected Person Party for such reductionreduction in accordance with the priority of payments set forth in Section 2.04, provided that this Section 2.10(b) shall not apply to any Indemnified Taxes or Excluded Taxes.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.12.10, the Affected Person Party may use any reasonable averaging and attribution methods. The Facility Agent, on behalf of any Affected Person Party making a claim under this Section 5.12.10, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(ed) With respect Failure or delay on the part of any Affected Party to any claim for demand compensation under pursuant to this Section 5.1 2.10 shall not constitute a waiver of such Affected Party’s right to demand or receive such compensation; provided that each Affected Party will notify the Borrower after it has received official notice of any event which it anticipates will entitle such Affected Party to such additional amounts as compensation. Notwithstanding anything to the contrary in this Section 2.10, the Borrower shall not be required to compensate such an Affected Person Party pursuant to this Section 2.10 for any amount amounts incurred more than 180 days six (6) months prior to the date that such Affected Person Party notifies the Borrower of such Affected Party’s intention to claim compensation therefor; provided that, if the event that gives circumstances giving rise to such claimclaim have a retroactive effect, then such six (6) month period shall be extended to include the period of such retroactive effect.
(e) If at any time the Borrower shall be liable for the payment of any additional amounts in accordance with this Section 2.10, then the Borrower shall have the option to terminate this Agreement (in accordance with the provisions of Section 2.18 but without the payment of any Optional Prepayment Penalty); provided that such option to terminate shall in no event relieve the Borrower of paying any amounts owing pursuant to this Section 2.10 in accordance with the terms hereof.
(f) An Notwithstanding anything herein to the contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all rules and regulations promulgated thereunder or issued in connection therewith and (ii) any law, request, rule, guideline or directive promulgated by the Bank of International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III shall, in each case, be deemed to have been introduced after the Closing Date, thereby constituting a change for which a claim for increased costs or additional amounts may be made hereunder with respect to the Affected Person shall not be entitled Parties, regardless of the date enacted, adopted or issued.
(g) If a Disruption Event with respect to any compensation pursuant to this Section 5.1 Lender occurs, such Lender shall in turn so notify the Borrower (with a copy to the extent Servicer and the Facility Agent), whereupon all Advances Outstanding of the affected Lender in respect of which Xxxxx accrues at the Benchmark shall immediately be converted into Advances Outstanding in respect of which such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to Yield accrues at the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)Base Rate.
Appears in 1 contract
Samples: Loan and Security Agreement (North Haven Private Income Fund LLC)
Increased Costs Capital Adequacy. (a) If, due to either (i) the introduction of or any change following the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body (whether or not having the force of law), (A) there shall be any increase in the cost to the Facility Agent, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Facility Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Facility Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverage), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Facility Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise otherwise, or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Facility Agent, the Borrower shall pay to the Facility Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Facility Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Blackstone Private Credit Fund)
Increased Costs Capital Adequacy. (a) IfIf after the Closing Date, due to either (i) any Lender, the introduction of Agent, any Funding Source or any change following of their respective Affiliates (each an “Affected Party”) shall be charged or shall incur any fee, expense, increased reserve requirement or other increased cost on account of the date hereof adoption or implementation of any applicable law, rule or regulation or any accounting principle (including, without limitation, any applicable law, rule or regulation or accounting principle regarding or affecting capital adequacy) or any change by way of imposition therein, or increase of reserve requirements) in or any change in the interpretationinterpretation or administration thereof by any Governmental Authority or accounting body charged with the interpretation or administration thereof, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic or (ii) the compliance with any guideline request or request following the date hereof from any central bank or other Official Body directive (whether or not having the force of law)) of any such Governmental Authority or accounting body (a “Regulatory Change”): (i) which subjects any Affected Party to any charge or withholding on or with respect to any Funding Agreement or an Affected Party’s obligations under a Funding Agreement, or on or with respect to the Assets, or changes the basis of taxation of payments to any Affected Party of any amounts payable under any Funding Agreement (Aexcept for changes in the rate of tax on the overall net income of an Affected Party) there shall be or (ii) which imposes, modifies or deems applicable any reserve, assessment, fee, tax, insurance charge, special deposit or similar requirement against assets of, deposits with or for the account of an Affected Party, or credit extended by an Affected Party pursuant to a Funding Agreement or (iii) which imposes any other condition the result of which is to increase in the cost to an Affected Party of performing its obligations under a Funding Agreement, or to reduce the Agentrate of return on an Affected Party’s capital as a consequence of its obligations under a Funding Agreement, any Lender Agent, any Lender, successor or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in reduce the amount of any sum received or receivable by an Affected Person Party under this a Funding Agreement or under to require any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand payment calculated by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Agent, on behalf of such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3.
(b) If either (i) the introduction of or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person with any request or directive regarding capital adequacy or liquidity coverage, has or would have the effect of reducing the rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverage), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum interests or loans held or interest received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulationsit, then, upon demand by or on behalf the Agent by the submission of such Affected Person through the Agentcertificate described below, the Borrower shall pay to the Agent, for the benefit of such the relevant Affected PersonParty, such amount amounts as will, in the determination of such Affected Person, are necessary to compensate such Affected Person thereforParty for such increased cost, reduction or payment. A certificate of from the applicable relevant Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c), regardless of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance with the requirements set forth in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate Party setting forth in reasonable detail the basis for and amounts so required to compensate such Affected Party submitted to the computations of such additional or increased costs, which certificate Borrower shall be conclusive and binding for all purposes, absent manifest error.
(eb) With respect to [Reserved]. 33
(c) If any claim for Affected Party requests compensation under this Section 5.1 2.10, or the Borrower shall not be are required to compensate such Affected Person for pay any additional amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation Lender, any Funding Source or any Governmental Authority for the account of such Lender or Funding Source pursuant to Section 2.11 or if the Agent gives a notice pursuant to Section 2.10(b), then such Lender or such Funding Source shall use reasonable efforts to designate a different lending office for funding or booking its Advances hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender or such Funding Source, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to this Section 5.1 2.10 or Section 2.11, as the case may be, in the future, or eliminate the need for the notice pursuant to the extent Section 2.10(b), as applicable, and (ii) in each case, would not subject such Affected Person is Lender or such Funding Source to any unreimbursed cost or expense and would not imposing otherwise be disadvantageous to such charges Lender or compensation on other borrowers similarly situated such Funding Source. The Borrower hereby agree to the Borrower hereunder under comparable credit facilities (it being understood that the amount of pay all reasonable costs and expenses incurred by such additional Lender or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).such Funding Source in connection with any such designation or assignment. Section 2.11
Appears in 1 contract
Samples: Credit and Security Agreement
Increased Costs Capital Adequacy. (a) IfSubject to the provisions of Section 4.4(e) below, due Borrower shall promptly pay directly to either each Lender such amounts as are reasonably necessary to compensate such Lender for any increase in costs which are attributable to such Lender’s making, maintaining or continuing of its Commitment or the loans evidenced by its Equipment Notes or funding arrangements utilized in connection with such loans (iincluding any hedging arrangement relating to any Fixed Rate), or any reduction in any amount receivable by such Lender hereunder in respect of its Commitment or under the Equipment Notes, such loans or such arrangements (such increases in costs and reductions in amounts receivable being herein called “Additional Costs”), applicable to the period commencing thirty (30) days prior to Lender’s notification thereof pursuant to Section 4.4(c) and resulting from the introduction adoption of or any change following after the date hereof (including, without limitation, any change by way of imposition or increase of reserve requirements) in Law or in the interpretation, administration interpretation or application arising following the date hereof of thereof or compliance by any Applicable Law, in each case whether foreign or domestic or (ii) the compliance Lender with any guideline request or request following the date hereof from any central bank or other Official Body directive (whether or not having the force of law)Law but, (Aif not having the force of Law, is generally applied by Lender with respect to similar credits under similar circumstances) there shall be from any increase in the cost central bank or other Governmental Entity made subsequent to the Agentdate hereof that:
(1) shall impose any tax that is the functional equivalent of any reserve, special deposit or similar requirements of the sort covered by clause (2) below; or
(2) shall impose or modify any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of advances, loans or other extensions of credit by, or any other acquisition of funds by, any Lender Agent, office of such Lender; or
(3) imposes any Lender, successor other condition affecting this Agreement or assign thereof (each of which shall be an “Affected Person”) of agreeing to make or making, funding or maintaining any Loan its Equipment Notes (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or receivable by an Affected Person under this Agreement or under any other Transaction Document, or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Person, pay to the Agent, on behalf extensions of credit or liabilities) or any such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs or reduced payments within thirty (30) days after such demand; provided, that the amounts payable under this Section 5.1 shall be without duplication of amounts payable under Section 4.3obligation.
(b) If either (i) Without duplication of any amounts payable by Borrower under Section 4.4(a), if any Lender shall have determined, acting reasonably and in good faith, that after the introduction date hereof, the adoption of or any change following the date hereof in any Law regarding capital adequacy or in the interpretation, administration interpretation or application arising following the date hereof of any lawthereof, guideline, rule or regulation, directive or request or (ii) the compliance by such Lender or any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, from any central bank, any Official Body or agency, including, without limitation, compliance by an Affected Person corporation controlling such Lender with any request or directive regarding capital adequacy (whether or liquidity coveragenot having the force of Law but, has or would if not having the force of law, is generally applied by such Lender with respect to similar credits under similar circumstances) from any Governmental Entity made subsequent to the date hereof, shall have the effect of reducing the rate of return on the such Lender’s or such corporation’s capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person Lender or such corporation could have achieved but for such introductionadoption, change or compliance (taking into consideration the such Lender’s or such corporation’s policies of such Affected Person with respect to capital adequacy and liquidity coverage), adequacy) by an amount deemed by such Affected Person Lender to be materialmaterial acting reasonably and in good faith, then, then from time to time, after demand submission by such Affected Person Lender to Borrower (which demand with a copy to Security Agent) of a written request therefor, Borrower shall be accompanied by pay to such Lender such additional amount or amounts as will compensate such Lender or such corporation for such reduction attributable to the period commencing thirty (30) days prior to Lender’s notification thereof pursuant to Section 4.4(c).
(c) Each Lender will furnish to Borrower (with a statement copy to Security Agent) an Officer’s Certificate setting forth in reasonable detail (i) the events giving rise to the request by such Lender for compensation under subsection (a) or (b) of this Section 4.4, (ii) the basis for determining such demand), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
compensation and (ciii) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable each request by such Affected Person or its Affiliates or otherwise Lender for compensation under subsection (a) or (iib) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by or on behalf of such Affected Person through the Agent, the Borrower shall pay to the Agent, for the benefit of such Affected Person, such amount as will, in the determination of such Affected Person, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall be conclusive absent manifest error. Notwithstanding anything to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes of this Section 5.1(c)4.4, regardless together with a statement that the determinations made in respect of the date enacted, adopted, issued or implemented; provided, however, that the Borrower shall not be responsible for any increased costs relating to the Retention Requirements so long as the Retention Holder is in compliance such compensation comply with the requirements provisions of this Section 4.4 and that none of the exceptions set forth in the Retention Letter.
(dSection 4.4(d) In determining any amount provided for in this Section 5.1, the Affected Person may use any reasonable averaging and attribution methodsapply with respect to such compensation. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a certificate setting Determinations set forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate Officer’s Certificate shall be conclusive presumed correct, absent manifest error.
(ed) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for make payments under this Section 4.4 to any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise Lender if (i) a claim hereunder arises through circumstances peculiar to such claim.
Lender and which do not affect commercial banks in the same jurisdiction generally, or (fii) An Affected Person shall not be entitled to the claim arises out of a relocation by such Lender of its lending office (except any compensation such relocation effected pursuant to this Section 5.1 to the extent 4.4(e)), or (iii) if a comparably situated borrower is being treated more favorably by such Affected Person is not imposing Lender (as reasonably determined by such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount Lender) in respect of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship)a claim made hereunder.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If, after the date hereof due to either (i) the introduction of or any change following in or to the date hereof interpretation of any law or regulation by the governmental authority that promulgated or administers compliance with such law or regulation (including, without limitation, other than laws or regulations with respect to income taxes or any change by way of imposition or increase of reserve requirements) in or requirements included in the interpretation, administration or application arising following the date hereof of any Applicable Law, in each case whether foreign or domestic Eurodollar Reserve Percentage) or (ii) the compliance with any guideline or request following the date hereof from any central bank or other Official Body fiscal, monetary or governmental authority, rating agency or similar agency (whether or not having the force of law), (A) and taking into account the obligations of the Liquidity Providers under the Liquidity Agreements, and otherwise in connection with any Conduit Lender's asset-supported financing business, any reserve or deposit or similar requirement shall be imposed, modified or deemed applicable or, any basis of taxation shall be changed or any other condition shall be imposed, and there shall be any increase in the cost to the Agent, any Lender Agent(either directly or indirectly through any increase in the costs to the related Liquidity Providers) of making, funding, or maintaining Loans or in the cost to any Lender, successor or assign thereof (each of which shall be an “Affected Person”) Lender of agreeing to make make, fund, or making, funding or maintaining any Loan maintain Loans (or any including the reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Person hereunder), as the case may be, (B) there shall be any reduction in the amount of any sum received or amount of principal or interest receivable by an Affected Person under this Agreement or under any other Transaction Documentthe Pledged Contracts), or (C) any Recipient is subject to any Taxes (other than (1) Indemnified Taxes and (2) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, then, in each case, then the Borrower shall, shall from time to time, after written upon demand by such Lender, or its Managing Agent or the Deal Agent (which demand shall be accompanied on its behalf, by a statement setting forth in reasonable detail the basis for such demand), on behalf submission of such Affected Personthe certificate described below, pay to the Agent, on behalf of such Affected PersonLender, additional amounts sufficient to compensate such Affected Person Lender, for such increased costs or reduced payments within thirty (30) days after such demandcost; provided, however, that in the case of any such increased cost incurred solely as a result of compliance with any guideline or request of any rating agency, the Borrower's obligation to pay any additional amounts identified on the certificate described below by way of compensation shall neither accrue, nor become due and payable, prior to the 90th day following the Borrower's receipt of such certificate (it being understood that the Borrower shall have no obligation to pay any such additional amount incurred solely as a result of a guideline or request of a rating agency if all outstanding Loans and any other amounts payable under this Section 5.1 outstanding hereunder are repaid in full and in cash, and the Borrower shall have terminated the obligations of the other parties hereto, prior to such 90th day following the Borrower's receipt of such certificate). A certificate setting forth in reasonable detail the amount of such increased cost submitted to the Borrower by such Lender, or its Managing Agent or the Deal Agent on its behalf, shall be without duplication of amounts payable under Section 4.3conclusive and binding for all purposes, absent manifest error.
(b) If either (i) the introduction of any Lender or Liquidity Provider determines that compliance with any law or regulation or any change following the date hereof in or in the interpretation, administration or application arising following the date hereof of any law, guideline, rule or regulation, directive guideline or request or (ii) the compliance by any Affected Person with any law, guideline, rule, regulation, directive or request following the date hereof, written interpretation from any central bankbank or other fiscal, any Official Body monetary or agencygovernmental authority, includingrating agency or similar agency (whether or not having the force of law) which is introduced, without limitationimplemented or received by such Lender or Liquidity Provider after the Effective Restatement Date, compliance by an Affected Person with any request affects or directive regarding would affect capital adequacy or liquidity coveragethe amount of capital required or expected to be maintained by such Lender or Liquidity Provider or any corporation controlling such Lender or Liquidity Provider and that the amount of such capital is increased by or based upon the Loans or the existence of this Credit Agreement, or upon the "Advances" of a Liquidity Provider, or such Liquidity Provider's commitment under the related Liquidity Agreement, and other commitments of that type, or has or would have the effect of reducing the such Person's rate of return on the capital of any Affected Person, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Person could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Person with respect to capital adequacy and liquidity coverage), by an amount deemed by such Affected Person to be material, then, from time to time, after demand by such Affected Person (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Person such additional amounts as will compensate such Affected Person for such reduction.
(c) If an Affected Person shall at any time (without regard to whether any Basel III Regulations or Xxxx-Xxxxx Regulations are then in effect) suffer or incur (i) any explicit or implicit charge, assessment, cost or expense by reason of the amount or type of assets, capital or supply of funding such Affected Person or any of its Affiliates is required or expected to maintain in connection with the transactions contemplated herein, without regard to (A) whether such charge, assessment, cost or expense is imposed or recognized internally, externally or inter-company or (B) whether it is determined in reference to a reduction in the rate of return on such Affected Person’s or Affiliate’s assets or capital, an inherent cost of the establishment or maintenance of a reserve of stable funding, a reduction in the amount of any sum received or receivable by such Affected Person or its Affiliates or otherwise or (ii) any other imputed cost or expense arising by reason of the actual or anticipated compliance by such Affected Person or any of its Affiliates with the Basel III Regulations or Xxxx-Xxxxx Regulations, then, upon demand by such Lender, or its Managing Agent or the Deal Agent on behalf its behalf, by the submission of such Affected Person through the Agentcertificate described below, the Borrower shall pay to such Lender, from time to time as specified by such Lender, or its Managing Agent or the AgentDeal Agent on its behalf, for additional amounts sufficient to compensate such Lender or Liquidity Provider (as the benefit of such Affected Person, such amount as willcase may be), in the determination light of such Affected Personcircumstances, compensate such Affected Person therefor. A certificate of the applicable Affected Person setting forth the amount or amounts necessary to compensate the Affected Person under this Section 5.1(c) shall be delivered to the Borrower and shall extent that such Lender or Liquidity Provider (as the case may be) reasonably determines such increase in capital to be conclusive absent manifest error. Notwithstanding anything allocable to the contrary contained herein, all requests, rules, guidelines, requirements and directives promulgated in connection with Loans or the Retention Requirements shall, in each case, be deemed to be a change or adoption of any law, rule or regulation for purposes existence of this Section 5.1(c)Credit Agreement, regardless or upon the "Advances" of a Liquidity Provider or such Liquidity Provider's commitment under the date enactedrelated Liquidity Agreement and other commitments of that type, adopted, issued or implementedto the extent that such Lender owes compensation to a Liquidity Provider in respect of or on account of such events; provided, however, that in the case of any such increase -------- ------- in capital required solely as a result of compliance with any guideline, request or written interpretation of any rating agency, the Borrower's obligation to pay any additional amounts identified on the certificate described below by way of compensation shall neither accrue, nor become due and payable, prior to the 90th day following the Borrower's receipt of such certificate (it being understood that the Borrower shall not be responsible for have no obligation to pay any increased costs relating to the Retention Requirements so long such additional amount incurred solely as the Retention Holder is a result of a guideline or request of a rating agency if all outstanding Loans and any other amounts outstanding hereunder are repaid in compliance with the requirements set forth full and in the Retention Letter.
(d) In determining any amount provided for in this Section 5.1cash, the Affected Person may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Person making a claim under this Section 5.1, shall submit to the Borrower a shall have terminated the obligations of the other parties hereto, prior to such 90th day following the Borrower's receipt of such certificate). A certificate setting forth in reasonable detail such amounts submitted to the basis for and Borrower by such Lender, or its Managing Agent or the computations of such additional or increased costsDeal Agent on its behalf, which certificate shall be conclusive and binding for all purposes, absent manifest error.
(e) With respect to any claim for compensation under this Section 5.1 the Borrower shall not be required to compensate such Affected Person for any amount incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the event that gives rise to such claim.
(f) An Affected Person shall not be entitled to any compensation pursuant to this Section 5.1 to the extent such Affected Person is not imposing such charges or compensation on other borrowers similarly situated to the Borrower hereunder under comparable credit facilities (it being understood that the amount of such additional or increased cost between similarly situated borrowers may be different after consideration of facility pricing, structure, usage patterns, capital treatment and banking relationship).
Appears in 1 contract
