Increased Costs Capital Adequacy. (a) 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 account of or credit extended by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate); (ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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 (iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient of making or maintaining any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered. (b) If any Lender or the Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered. (c) A certificate of a Lender, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same. (d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).
Appears in 3 contracts
Samples: Credit Agreement (Cactus, Inc.), Credit Agreement (Cactus, Inc.), Credit Agreement (Cactus, Inc.)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) shall impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any the Loan (or of maintaining its obligation to increase make the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Loan) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient Lender hereunder (whether of principal, interest or otherwise) ), then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans Advances made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company company, as applicable, could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company company, as applicable, with respect to capital adequacy or liquidity) adequacy), then from time to time the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank ’s or such Lender’s or the Issuing Bank’s holding company company, as applicable, for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the Lender’s holding company, as applicablethe case may be, as specified in paragraph (aSections 3.3(a) or and (b) above ), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 ten (10) days after its receipt of the samethereof.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 3.3 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section 3.3 for any increased costs incurred or reductions suffered incurred more than nine months 90 days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine90-month day period referred to above shall be extended to include the period of retroactive effect thereof.
(e) In the alternative to paying the amounts required pursuant to this Section 3.3, Borrower shall have the option to prepay the Loan and all other outstanding Obligations in full and terminate this Agreement, within ninety (90) days of the date Borrower receives the certificate set forth in Section 3.3(c), without paying the liquidated damages provided in Section 2.6(a) of this Agreement.
Appears in 3 contracts
Samples: Loan and Security Agreement, Loan and Security Agreement (Bluegreen Vacations Corp), Loan and Security Agreement (Bluegreen Corp)
Increased Costs Capital Adequacy. (a) 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 account of or credit extended by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of CreditLender; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank Lender or such other Recipient of making or maintaining any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank Lender or such other Recipient hereunder (whether of principal, interest or otherwise) ), then the Borrower will pay to such Lender, the Issuing Bank Lender or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank Lender or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank Lender or such other Recipient the amount shown as due on any such certificate delivered by it within 10 ten (10) days after its receipt of the same.
(d) Failure or delay on the part of any Lender, the Issuing Bank Lender or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank Lender or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months 180 days prior to the date that such Lender, the Issuing Bank Lender or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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 nine180-month day period referred to above shall be extended to include the period of retroactive effect thereof).
Appears in 3 contracts
Samples: Credit Agreement (School Specialty Inc), Credit Agreement (School Specialty Inc), Credit Agreement (School Specialty Inc)
Increased Costs Capital Adequacy. (a) 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 account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO RateLIBOR);
(ii) subject the Administrative Agent or any Recipient Lender to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income or Other Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or Lender, including as a result of any Letter of Credit or participation in any Letter of CreditSuccessor Borrower Transaction; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Loan (or of maintaining its obligation to increase the cost to make any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Loan) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder Lender (whether of principal, interest or otherwise) ), then the applicable Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Lender, to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) ), then from time to time the applicable Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered. Notwithstanding any other provision herein, no Lender shall demand compensation pursuant to this Section 2.16(b) as a result of a Change in Law resulting from Basel III or the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act if it shall not at the time be the general policy or practice of such Lender to demand such compensation from similarly situated borrowers (to the extent that, with respect to such Change in Law, such Lender has the right to do so under its credit facilities with similarly situated borrowers).
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the its holding company, as applicable, as specified in paragraph (a) or (b) above of this Section 2.16 shall be delivered to the applicable Borrower and shall be conclusive absent manifest error. The Such Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 days Business Days after its receipt of the samethereof.
(d) Promptly after any Lender has determined that it will make a request for increased compensation pursuant to this Section 2.16, such Lender shall notify the applicable Borrower. Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 2.16 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the such Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section 2.16 for any increased costs incurred or reductions suffered incurred more than nine months 270 days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Lender notifies the applicable Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except thattherefor; provided, further, that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month 270 day period referred to above shall be extended to include the period of retroactive effect thereof).
Appears in 3 contracts
Samples: Credit and Guaranty Agreement (Concordia International Corp.), Credit and Guaranty Agreement (Concordia International Corp.), Credit and Guaranty Agreement
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, assessment, fee, tax, insurance charge, liquidity or similar requirement (including any compulsory loanloan requirement, insurance charge or similar requirement other assessment) against assets of, deposits with or for the account of of, or credit extended by by, any of the Administrative Agent, any Lender or the Issuing Bank any Affiliate, participant, successor or assign thereof (except any such reserve requirement each of which is reflected in the Adjusted LIBO Rateshall be an “Affected Party”);
(ii) subject any Recipient Affected Party to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Excluded Taxes) on its loans, loan principal, letters of credit, commitmentscommitment, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or;
(iii) impose on any Lender or the Issuing Bank Affected Party or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit 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 any Letter of Creditwhich 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 Lender, the Issuing Bank Affected Party of funding or such other Recipient of making or maintaining any Loan 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 any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Affected Party or to reduce the amount of any sum received or receivable by such LenderAffected Party, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) otherwise or to require any payment calculated by reference to the amount of interest or loans received or held by such Affected Party, then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Affected Party such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Affected Party for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined Affected Party determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing BankAffected Party’s capital or on the capital of such Lender’s or the Issuing BankAffected Party’s holding company, if any, as a consequence of this Agreement or the Loans Advances made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Affected Party to a level below that which such Lender Affected Party or the Issuing Bank or such Lender’s or the Issuing BankAffected Party’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing BankAffected Party’s policies and the policies of such Lender’s or the Issuing BankAffected Party’s holding company with respect to capital adequacy or and liquidity) ), then from time to time the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, Affected Party such additional amount or amounts as will compensate such Lender, the Issuing Bank Affected Party or such Lender’s or the Issuing BankAffected Party’s holding company for any such reduction suffered.
(c) A certificate of a Lender, an Affected Party providing an explanation of the Issuing Bank or such other Recipient applicable Change in Law and setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Affected Party or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph clause (a) or (b) above of this Section 2.10 shall be delivered to the Borrower and shall be conclusive absent manifest error. In determining any amount provided for in this Section 2.10, the Affected Party may use any reasonable averaging and attribution methods. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Affected Party the amount shown as due on any such certificate delivered by it within 10 days after its on the Payment Date following receipt of the samethereof.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Affected Party to demand compensation pursuant to this Section 2.14 2.10 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipientany Affected Party’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above Affected Party pursuant to this Section 2.10 for any increased costs incurred or reductions suffered incurred more than nine months one hundred and eighty (180) days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Affected Party notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such RecipientAffected Party’s intention to claim compensation therefor (except therefor; provided, further, that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month one hundred and eighty (180)-day period referred to above shall be extended to include the period of retroactive effect thereof).
(e) In the event that any Affected Party shall incur any loss or expense (including any loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Affected Party to make any purchase or loan or maintain any purchase or loan) as a result of any Advance not being made in accordance with a request therefor under Section 2.02, then, on the Payment Date following written notice from such Affected Party to the Borrower, the Borrower shall pay to such Affected Party, the amount of such loss or expense. Such written notice (which shall include calculations in reasonable detail) shall, in the absence of manifest error, be conclusive and binding upon the Borrower.
Appears in 3 contracts
Samples: Loan and Servicing Agreement (Franklin BSP Capital Corp), Loan and Servicing Agreement (Franklin BSP Capital Corp), Loan and Servicing Agreement (Franklin BSP Capital Corp)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, assessment, fee, tax, insurance charge, liquidity or similar requirement (including any compulsory loanloan requirement, insurance charge or similar requirement other assessment) against assets of, deposits with or for the account of of, or credit extended by by, any the Administrative Agent, any Lender or the Issuing Bank any Affiliate, participant, successor or assign thereof (except any such reserve requirement each of which is reflected in the Adjusted LIBO Rateshall be an "Affected Party");
(ii) subject impose on any Recipient to Affected Party or the London interbank market any Taxes other condition, cost 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; or
(iii) change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; 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 amount of interest or loans received or held by such Affected Party, then the Borrower will pay to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional costs incurred or reduction suffered.
(b) If any Affected Party determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Affected Party's capital or on the capital of Affected Party's holding company, if any, as a consequence of this Agreement or the Advances made by such Affected Party to a level below that which such Affected Party or Affected Party's holding company could have achieved but for such Change in Law (taking into consideration such Affected Party's policies and the policies of such Affected Party's holding company with respect to capital adequacy and liquidity), the Borrower will pay to such Affected Party such additional amount or amounts as will compensate such Affected Party or Affected Party's holding company for any such reduction suffered on the immediately following Payment Date pursuant to Section 2.04 to the extent of available funds.
(c) A certificate of an Affected Party providing an explanation of the applicable Change in Law and setting forth the amount or amounts necessary to compensate such Affected Party or its holding company, as the case may be, as specified in clause (a) or (b) of this Section 2.10 shall be delivered to the Borrower and shall be conclusive absent manifest or demonstrable error. In determining any amount provided for in this Section 2.10, the Affected Party may use any reasonable averaging and attribution methods. The Borrower shall pay such Affected Party the amount shown as due on any such certificate on the Payment Date following receipt thereof to the extent of available funds.
(d) If a Currency Disruption Event as described in clause (a) of the definition of “Currency Disruption Event” with respect to any Lender occurred, such Lender shall in turn so notify the Borrower, whereupon the Yield Rate with respect to all Advances Outstanding of the affected Lender denominated in the affected Eligible Currency shall accrue Yield at the Designated Base Rate plus the Applicable Margin.
(e) 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 any Affected Party's right to demand such compensation; provided that the Borrower shall not be required to compensate any Affected Party pursuant to this Section 2.10 for any increased costs or reductions incurred more than one hundred and eighty (180) days prior to the date that such Affected Party notifies the Borrower of the Change in Law giving rise to such increased 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.
(f) In the event that any Affected Party shall incur any loss or expense (including any loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Affected Party to make any purchase or loan or maintain any purchase or loan) as a result of any Advance not being made in accordance with a request therefor under Section 2.02, then, on the immediately following Payment Date following written notice from such Affected Party to the Borrower, the Borrower shall pay to such Affected Party, the amount of such loss or expense, pursuant to Section 2.04 (to the extent of available funds). Such written notice (which shall include calculations in reasonable detail) shall, in the absence of manifest or demonstrable error, be conclusive and binding upon the Borrower.
(g) This Section 2.10 shall not apply to any (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient of making or maintaining any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).
Appears in 3 contracts
Samples: Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.), Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.), Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.)
Increased Costs Capital Adequacy. (a) If after the date of this Agreement any Change change in Law shall:
any applicable Governmental Requirement (iincluding, without limitation, the adoption of any new Governmental Requirement) or in the interpretation or administration thereof by any central bank or comparable agency or any other Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of or credit extended by any Lender or the Issuing Bank (except any such reserve requirement which that is reflected in the Adjusted LIBO RateEurodollar Rate Reserve Percentage);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) shall impose on any such Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) condition affecting this Agreement or Eurodollar Rate Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; Lender, and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Eurodollar Rate Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient Lender hereunder (whether of principal, interest interest, fees or otherwise) by an amount reasonably determined by such Lender to be material, then the Borrower will pay to such Lender, the Issuing Bank or following receipt of a notice from such other RecipientLender to such effect, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that (i) the adoption after the date of this Agreement of any Change Governmental Requirement, guideline or directive regarding capital adequacy, (ii) any change after the date of this Agreement in Law any such Governmental Requirement, guideline or directive or in the interpretation or administration thereof after the date of this Agreement by any central bank or comparable agency or any other Governmental Authority charged with the interpretation or administration thereof or (iii) compliance by any Lender (or any lending office of such Lender) or any Lender's holding company with any request or directive regarding capital adequacy issued after the date of this Agreement under any Governmental Requirement or liquidity requirements guideline (whether or not having the force of law) of any Governmental Authority has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s 's capital or on the capital of such Lender’s or the Issuing Bank’s 's holding company, if any, as a consequence of this Agreement Agreement, the Commitment of such Lender or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s 's holding company could have achieved but for such Change in Law applicability, adoption, change or compliance (taking into consideration such Lender’s or the Issuing Bank’s 's policies and the policies of such Lender’s or the Issuing Bank’s 's holding company with respect to capital adequacy or liquidityadequacy) by an amount reasonably determined by such Lender to be material, then from time to time the Borrower shall will pay to such Lender, following receipt of a notice from such Lender or the Issuing Bank, as the case may beto such effect, such additional amount or amounts as will shall compensate such Lender, the Issuing Bank Lender or such Lender’s or the Issuing Bank’s 's holding company for any such reduction suffered.
(c) A certificate of Any Lender requiring payment under this Section 3.05 shall deliver to the Borrower a Lender, the Issuing Bank or such other Recipient statement reasonably setting forth the amount or amounts necessary to compensate such Lenderand manner of determination thereof, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above which statement shall be delivered to the Borrower and shall be conclusive conclusive, absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on Each Lender will promptly notify the part Borrower of any Lender, event occurring after the Issuing Bank or other date of this Agreement of which it has knowledge which will entitle such Recipient Lender to demand compensation pursuant to this Section 2.14 shall not constitute 3.05 and will designate a waiver different Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the judgment of such Lender’s, the Issuing Bank’s or such other Recipient’s right be otherwise disadvantageous to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).
Appears in 2 contracts
Samples: Credit Agreement (Lyondell Chemical Co), Credit Agreement (Lyondell Chemical Co)
Increased Costs Capital Adequacy. (a) If any Change 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 account of of, or credit extended by or participated in by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient Lender to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any LIBOR Loan made by it, or change the basis of taxation of payments to such Lender in respect thereof (except for Taxes (other than (A) Indemnified Taxesor Other Taxes covered by Section 3.01 and the imposition of, (B) Taxes described or any change in clauses (b) through (d) of the rate of, any tax excluded from the definition of Excluded Taxes and (Cin Section 3.01(a) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable theretopayable by such Lender); or
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or LIBOR Loans made by such Lender or any Letter of Credit or participation in any Letter of Credittherein; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any LIBOR Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to any Lendersuch Lender of participating in, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing continuing its obligation under any Support Agreement (or of maintaining a participation its obligation to participate in or to issue any Letter of Credit Credit), or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient Lender hereunder (whether of principal, interest or otherwiseany other amount) then then, upon request of such Lender, the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered, so long as such costs have accrued on or after the day which is two hundred seventy (270) days prior to the date on which such Lender first made demand therefor.
(b) If Without duplication of amounts payable in paragraph (a) above, if any Lender or the Issuing Bank shall have determined determines that any Change change in Law affecting such Lender or any lending office of such Lender or such Lender’s holding company, if any, regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit purchased by held by, such Lender pursuant hereto Lender, or the Letters of Credit issued by the Issuing Bank pursuant hereto such Lender, to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) adequacy), then from time to time the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Providence Service Corp), Credit and Guaranty Agreement (Providence Service Corp)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) imposeshall result in the imposition, modify modification or deem applicable applicability of any reserve, liquidity, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of of, or credit extended or participated in by any Lender Lender; or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) shall subject any Recipient Lender to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of Tax with respect to the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitmentsTerm Loan or any Loan Document, or other obligations, change the basis of taxation of payments to such Lender in respect thereof; or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) shall impose on any Lender or the Issuing Bank or the London any interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender the Term Loan or any Letter of Credit or participation in any Letter of CreditLoan Document; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Loan or to increase the cost to any LenderTerm Loan, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient any Lender hereunder (whether of principal, interest or otherwiseany other amount) then then, upon request of such Lender, the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law affecting such Lender regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement Agreement, or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Lender’s Term Loan, to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) adequacy), then from time to time the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company it for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).
Appears in 2 contracts
Samples: Loan Agreement (Heritage Distilling Holding Company, Inc.), Loan Agreement (Heritage Distilling Holding Company, Inc.)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by any by, the Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient the Lender to any Taxes (other than (A) Indemnified TaxesTax of any kind whatsoever with respect to this Agreement, (B) Taxes described in clauses (b) through (d) any Letter of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitmentsCredit or any Eurodollar Loan made by it, or other obligationschange the basis of taxation of any payments to the Lender in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 2.17 and the imposition of, or its depositsany change to, reserves, other liabilities or capital attributable theretothe rate of any Excluded Tax payable by the Lender); or
(iii) impose on any the Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) condition affecting this Agreement or Eurodollar Loans made by such the Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Eurodollar Loan (or of maintaining its obligation to make Eurodollar Loans) or to increase the cost to any Lender, the Issuing Bank or such other Recipient of Lender issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the any amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient Lender hereunder (whether of principal, interest or otherwise) ), then the Borrower will Borrowers shall pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, it for such additional costs cost incurred or reduction suffered.
(b) If any the Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such the Lender’s or the Issuing Bank’s capital or on the capital of such the Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by it or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto it, to a level below that which such the Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company reasonably could have achieved but for such Change in Law (taking into consideration such the Lender’s or the Issuing Bank’s policies and the policies of such the Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) adequacy), then from time to time following receipt of the Borrower certificate referred to in subsection (c) of this Section, the Borrowers shall pay to such the Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank it or such Lender’s or the Issuing Bank’s its holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank it or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph subsection (a) or (b) above of this Section shall be delivered to the Borrower Agent and shall be conclusive absent manifest errorrebuttably presumed to be correct. Each such certificate shall contain a representation and warranty on the part of the Lender to the effect that the Lender has complied with its obligations pursuant to Section 2.21 hereof in an effort to eliminate or reduce such amount. The Borrower Borrowers shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the samethereof.
(d) Failure or delay on by the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 shall will not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s its right to demand such compensation; provided that the Borrower shall Borrowers will not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above Lender pursuant to this Section for any increased costs cost or reduction incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, one year before it notifies the Borrower Agent of the Change in Law giving rise to such increased costs cost or reductions, reduction and of such Lender’s, the Issuing Bank’s or other such Recipient’s its intention to claim compensation therefor (except thattherefor. However, if the Change in Law giving rise to such increased costs cost or reductions reduction is retroactive, then the nine-month one year period referred to above shall will be extended to include the period of retroactive effect thereof).
Appears in 2 contracts
Samples: Credit Agreement (James River Group Holdings, Ltd.), Credit Agreement (James River Group Holdings, Ltd.)
Increased Costs Capital Adequacy. (a) 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 account of of, or credit extended by or participated in by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Eurocurrency Rate)) or any Issuing Bank;
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, Taxes and (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loansLoans, loan Loan principal, letters Letters of creditCredit, commitments, Commitments or other obligationsObligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the any Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credittherein; and the result of any of the foregoing shall be to materially increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender, the such Issuing Bank or such other Recipient of making or maintaining any Loan or to increase the cost to any Lenderparticipating in, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit (or purchasing of maintaining its obligation to participate in or maintaining a participation in to issue any Letter of Credit Credit), or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwiseany other amount) then then, from time to time upon the request of such Lender, Issuing Bank or other Recipient, the relevant Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered. If any Lender or Issuing Bank becomes entitled to claim any additional amounts pursuant to this Section 2.19, it shall promptly notify the relevant Borrower (with a copy to the Administrative Agent) of the event by reason of which it has become so entitled.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law affecting such Lender or Issuing Bank or any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital adequacy or liquidity requirements requirements, has had or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit purchased by or Swing Line Loans held by, such Lender pursuant hereto Lender, or the Letters of Credit issued by the such Issuing Bank pursuant hereto Bank, to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) ), then from time to time after submission by such Lender or Issuing Bank to the relevant Borrower shall (with a copy to the Administrative Agent) of a written request therefor the relevant Borrower will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Lender or Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender, the Lender or Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Lender or Issuing Bank or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph (aSection 2.19(a) or (bSection 2.19(b) above shall be and delivered to the relevant Borrower and (with a copy to the Administrative Agent), shall be conclusive absent manifest error. The relevant Borrower shall pay such LenderLender or Issuing Bank, as the Issuing Bank or such other Recipient case may be, the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the samethereof.
(d) Failure or delay on the part of any Lender, the Lender or Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 2.19 shall not constitute a waiver of such Lender’s, the ’s or Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the relevant Borrower shall not be required to compensate any Lender, the a Lender or Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section 2.19 for any increased costs incurred or reductions suffered more than nine months 270 days prior to the date that such Lender, the Lender or Issuing Bank or other RecipientBank, as the case may be, notifies the relevant Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the ’s or Issuing Bank’s or other such Recipient’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 nine270-month day period referred to above shall be extended to include the period of retroactive effect thereof).
(e) The obligations of each Borrower pursuant to this Section 2.19 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
Appears in 2 contracts
Samples: Amendment and Restatement Agreement (Compass Minerals International Inc), Credit Agreement (Compass Minerals International Inc)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Contract Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) condition affecting this Loan Agreement or Loans made the Loan; or
(iii) make it unlawful for Lender to make or maintain the indebtedness evidenced by such Lender or any Letter of Credit or participation the Loan in any Letter of Crediteurodollars; and the result of any of the foregoing shall be to increase such Change in Law increases the cost to such Lender, the Issuing Bank or such other Recipient any Lender of making or maintaining any the Loan (or of maintaining its obligation to increase make the cost to any Lender, the Issuing Bank Loan) or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce reduces the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder any Lender under this Loan Agreement (whether of principal, interest or otherwise) ), then the Borrower will shall pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(b) If at the time of or prior to any determination of the Contract Rate, Lender determines (which determination shall be conclusive in the absence of manifest error) that by reason of circumstances affecting the London interbank market generally, (i) deposits in United States Dollars in the relevant amounts and of the relevant maturity are unavailable to Lender in the London interbank market, (ii) the Contract Rate does not adequately or fairly reflect the cost to Lender of making or maintaining the Loan due to changes in administrative costs, fees, tariffs or taxes or other matters outside of Lender’s reasonable control or (iii) adequate and fair means do not or will not exist for determining the Contract Rate, then Lender shall promptly notify Borrower, and the Loan shall bear interest, and continue to bear interest until Lender determines in its Permitted Discretion that the applicable circumstance described in the foregoing clauses (i), (ii) or (iii) no longer pertains, at a fluctuating rate per annum based on a substitute index selected by Lender plus a suitable margin to approximate, in Lender’s good faith judgment, the return that Lender would have received if the circumstance had not occurred.
(c) If any Lender or the Issuing Bank shall have determined determines in its Permitted Discretion that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Loan Agreement or the Loans Loan made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s its holding company company, as applicable, could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company company, as applicable, with respect to capital adequacy or liquidity) adequacy), then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company company, as applicable, for any such reduction suffered.
(cd) A certificate of a Lender, the Issuing Bank or such other Recipient from any Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the its holding company, as applicable, as specified in paragraph (aunder Sections 2.10(a) or (b) above 2.10(b), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 ten (10) days after its receipt (the date of such payment being the same“Increased Cost Payment Date”).
(de) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 2.10 shall not constitute a waiver of waive such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient Lender under paragraph (a) or (b) above pursuant to this Section 2.10 for any increased costs incurred or reductions suffered incurred more than nine months ninety (90) days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, any Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except for such increased costs or reduction; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the ninesuch 90-month day period referred to above shall will be extended to include the period of such retroactive effect thereofeffect.
(f) Notwithstanding anything to the contrary in this Loan Agreement, the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith shall be deemed to be a Change in Law and/or a change in capital adequacy requirements, as applicable, regardless of the date enacted, adopted or issued, provided, Borrower shall be treated in the same manner, with respect to this Subsection (f), as other similarly situated borrowers of such Lender.
(g) Notwithstanding anything to the contrary in this Loan Agreement, if any Change in Law affects any Lender and results in Borrower having to pay additional amounts to such Lender to compensate such Lender for such additional costs incurred or reduction suffered, Borrower shall have the right to prepay the Loan in full, following payment to any Lender of amounts due under this Section 2.10 together with any Exit Fee, without the obligation to pay a Prepayment Premium. The election to prepay the Loan in full pursuant to this Section 2.10 shall be made in writing by Borrower not more than sixty (60) days after the Increased Cost Payment Date and such prepayment in full shall have been made within one hundred twenty (120) days of the Increased Cost Payment Date.
Appears in 2 contracts
Samples: Loan Agreement (Red Lion Hotels CORP), Loan Agreement (Red Lion Hotels CORP)
Increased Costs Capital Adequacy. (a) If after the date of this Agreement any Change change in Law shall:
any applicable Governmental Requirement (iincluding, without limitation, the adoption of any new Governmental Requirement) or in the interpretation or administration thereof by any central bank or comparable agency or any other Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of or credit extended by any Lender or the Issuing Bank Issuer (except any such reserve requirement which that is reflected in the Adjusted LIBO RateEurodollar Rate Reserve Percentage);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) shall impose on any such Lender or the Issuing Bank Issuer or the London interbank market any other condition, cost or expense (other than Taxes) condition affecting this Agreement or Eurodollar Rate Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; therein, and the result of any of the foregoing shall be to increase the cost to such Lender, Lender or the Issuing Bank or such other Recipient Issuer of making or maintaining any Eurodollar Rate Loan or to increase the cost to any Lender, such Lender or the Issuing Bank or such other Recipient Issuer of issuing or maintaining any Letter of Credit Credit, paying or funding any draw request thereunder or purchasing or maintaining a participation in any Letter of Credit therein, or to reduce the amount of any sum received or receivable by such Lender, Lender hereunder or the Issuing Bank Issuer hereunder or such other Recipient hereunder under any Letter of Credit Reimbursement Agreement (whether of principal, interest interest, fees or otherwise) by an amount reasonably determined by such Lender or the Issuer to be material, then the Borrower will pay to such Lender, Lender or the Issuing Bank or such other RecipientIssuer, as the case may be, upon demand following receipt of a notice from such Lender or the Issuer, as the case may be, to such effect, such additional amount or amounts as will compensate such Lender, Lender or the Issuing Bank or such other RecipientIssuer, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank Issuer shall have determined that (i) the adoption after the date of this Agreement of any Change Governmental Requirement, guideline or directive regarding capital adequacy, (ii) any change after the date of this Agreement in Law any such Governmental Requirement, guideline or directive or in the interpretation or administration thereof after the date of this Agreement by any central bank or comparable agency or any other Governmental Authority charged with the interpretation or administration thereof or (iii) compliance by any Lender (or any lending office of such Lender) or the Issuer or any Lender's or the Issuer's holding company with any request or directive regarding capital adequacy issued after the date of this Agreement under any Governmental Requirement or liquidity requirements guideline (whether or not having the force of law) of any Governmental Authority has or would have the effect of reducing the rate of return on such Lender’s 's or the Issuing Bank’s Issuer's capital or on the capital of such Lender’s 's or the Issuing Bank’s Issuer's holding company, if any, as a consequence of this Agreement Agreement, the Commitment of such Lender or the Loans made by such Lender or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank Issuer pursuant hereto to a level below that which such Lender or the Issuing Bank Issuer or such Lender’s 's or the Issuing Bank’s Issuer's holding company could have achieved but for such Change in Law applicability, adoption, change or compliance (taking into consideration such Lender’s 's or the Issuing Bank’s Issuer's policies and the policies of such Lender’s 's or the Issuing Bank’s Issuer's holding company with respect to capital adequacy adequacy) by an amount reasonably determined by such Lender or liquidity) the Issuer to be material, then from time to time the Borrower shall will pay to such Lender or the Issuing BankIssuer, as the case may be, following receipt of a notice from such Lender or the Issuer, as the case may be, to such effect, such additional amount or amounts as will shall compensate such Lender, Lender or the Issuing Bank Issuer or such Lender’s 's or the Issuing Bank’s Issuer's holding company for any such reduction suffered.
(c) A certificate of The Issuer or any Lender requiring payment under this Section 3.05 shall deliver to the Borrower a Lender, the Issuing Bank or such other Recipient statement reasonably setting forth the amount or amounts necessary to compensate such Lenderand manner of determination thereof, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above which statement shall be delivered to the Borrower and shall be conclusive conclusive, absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on Each Lender will promptly notify the part Borrower of any Lender, event occurring after the Issuing Bank or other date of this Agreement of which it has knowledge which will entitle such Recipient Lender to demand compensation pursuant to this Section 2.14 shall not constitute 3.05 and will designate a waiver different Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the judgment of such Lender’s, the Issuing Bank’s or such other Recipient’s right be otherwise disadvantageous to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).
Appears in 2 contracts
Samples: Revolving Credit Agreement (Lyondell Chemical Co), Revolving Credit Agreement (Lyondell Chemical Co)
Increased Costs Capital Adequacy. (a) If any Change in Law shallLaw:
(i) imposesubjects the Lender to any Taxes, modify or deem changes the basis of taxation of payments to the Lender in respect of its Loans (excluding Excluded Taxes);
(ii) imposes, increases, modifies, or deems applicable any reserve, special deposit, compulsory loanassessment, insurance charge charge, special deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by any Lender or by, the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable theretoLender; or
(iii) impose on any Lender or the Issuing Bank or the London interbank market imposes any other conditioncondition the result of which is to increase the cost to the Lender of making, cost funding or expense (other than Taxes) affecting this Agreement maintaining Loans, reduces any amount receivable by the Lender in connection with the Loans, or requires the Lender to make any payment calculated by reference to the amount of Loans made or interest received by such it, by an amount deemed material by the Lender or any Letter in the exercise of Credit or participation in any Letter of Credit; its reasonable discretion, and the result of any of the foregoing shall be is to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Loan its Loans or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Commitments or to reduce the amount of any sum return received by the Lender in connection with such Loans or receivable by such LenderCommitments, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will shall pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred increased cost or reduction sufferedin the amount received.
(b) If any the Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such the Lender’s or the Issuing Bank’s capital or on the capital of such the Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans a Loan made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Lender to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such the Lender’s or the Issuing Bank’s policies and the policies of such the Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) adequacy), then from time to time the Borrower shall will pay to such the Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such the Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate . For purposes of a Lenderthis Section, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) a “Change in Law” includes (i) any change after the date of this Agreement in the Risk-Based Capital Guidelines (as defined below) or (ii) any adoption of or change in any other law, governmental or 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 that affects the amount of capital required or expected to be maintained by the Lender or any corporation controlling the Lender and (b) above shall be delivered to “Risk-Based Capital Guidelines” means (i) the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, risk-based capital guidelines in effect in the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay United States on the part date of this Agreement, including transition rules, and (ii) the corresponding capital regulations promulgated by regulatory authorities outside the United States, including transition rules, and any Lender, the Issuing Bank or other amendments to such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months regulations adopted prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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)this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Galaxy Gaming, Inc.), Credit Agreement (Galaxy Gaming, Inc.)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate)) or any Letter of Credit Issuer;
(ii) subject any Recipient Lender or any Letter of Credit Issuer to any Taxes (other than (A) Indemnified TaxesTax of any kind whatsoever with respect to this Agreement, (B) Taxes described in clauses (b) through (d) any Letter of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitmentsCredit or any Eurodollar Loan made by it, or other obligationschange the basis of taxation of any payments to such Lender or such Letter of Credit Issuer in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 2.17 and the imposition of, or its depositsany change to, reserves, other liabilities the rate of any Excluded Tax payable by such Lender or capital attributable theretosuch Letter of Credit Issuer); or
(iii) impose on any Lender or the Issuing Bank any Letter of Credit Issuer or the London interbank market any other condition, cost or expense (other than Taxes) condition affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of Credit or participation in any Letter of Credittherein; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Eurodollar Loan (or of maintaining its obligation to make Eurodollar Loans) or to increase the cost to any Lender, the Issuing Bank such Lender or such other Recipient Letter of Credit Issuer of participating in, issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the any amount of any sum received or receivable by such Lender, the Issuing Bank Lender or such other Recipient Letter of Credit Issuer hereunder (whether of principal, interest or otherwise) ), then the Borrower will Borrowers shall pay to such Lender, the Issuing Bank Lender or such other RecipientLetter of Credit Issuer, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, it for such additional costs cost incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined any Letter of Credit Issuer determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Banksuch Letter of Credit Issuer’s capital or on the capital of such Lender’s or the Issuing Banksuch Letter of Credit Issuer’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit purchased by held by, such Lender pursuant hereto Lender, or the Letters of Credit issued by the Issuing Bank pursuant hereto such Letter of Credit Issuer, to a level below that which such Lender or the Issuing Bank such Letter of Credit Issuer or such Lender’s or the Issuing Banksuch Letter of Credit Issuer’s holding company reasonably could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Banksuch Letter of Credit Issuer’s policies and the policies of such Lender’s or the Issuing Banksuch Letter of Credit Issuer’s holding company with respect to capital adequacy or liquidity) adequacy), then from time to time following receipt of the Borrower certificate referred to in subsection (c) of this Section, the Borrowers shall pay to such Lender or the Issuing Banksuch Letter of Credit Issuer, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank it or such Lender’s or the Issuing Bank’s its holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank Lender or such other Recipient a Letter of Credit Issuer setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank it or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph subsection (a) or (b) above of this Section shall be delivered to the Borrower Agent and shall be conclusive absent manifest errorrebuttably presumed to be correct. Each such certificate shall contain a representation and warranty on the part of such Lender or Letter of Credit Issuer to the effect that such Lender or Letter of Credit Issuer has complied with its obligations pursuant to Section 2.21 hereof in an effort to eliminate or reduce such amount. The Borrower Borrowers shall pay such Lender, the Issuing Bank Lender or such other Recipient Letter of Credit Issuer, as the case may be, the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the samethereof.
(d) Failure or delay on the part by any Lender or Letter of any Lender, the Issuing Bank or other such Recipient Credit Issuer to demand compensation pursuant to this Section 2.14 shall will not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s its right to demand such compensation; provided that the Borrower shall Borrowers will not be required to compensate any Lender, the Issuing Bank a Lender or other such Recipient under paragraph (a) or (b) above a Letter of Credit Issuer pursuant to this Section for any increased costs cost or reduction incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, one year before it notifies the Borrower Agent of the Change in Law giving rise to such increased costs cost or reductions, reduction and of such Lender’s, the Issuing Bank’s or other such Recipient’s its intention to claim compensation therefor (except thattherefor. However, if the Change in Law giving rise to such increased costs cost or reductions reduction is retroactive, then the nine-month one year period referred to above shall will be extended to include the period of retroactive effect thereof.
(e) Within four (4) months following the date such certificate is furnished claiming compensation by any such Lender (an “Affected Lender”, which term shall also include a Lender making a demand under Section 2.17), the Borrowers may replace the Affected Lender pursuant to the provisions of Section 9.15.
Appears in 2 contracts
Samples: Credit Agreement (James River Group Holdings, Ltd.), Credit Agreement (James River Group Holdings, Ltd.)
Increased Costs Capital Adequacy. (a) 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 account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject the Administrative Agent or any Recipient Lender to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income or Other Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of CreditLender; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Loan (or of maintaining its obligation to increase the cost to make any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Loan) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder Lender (whether of principal, interest or otherwise) ), then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Lender, to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) ), then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered. Notwithstanding any other provision herein, no Lender shall demand compensation pursuant to this Section 2.16(b) as a result of a Change in Law resulting from Basel III or the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act if it shall not at the time be the general policy or practice of such Lender to demand such compensation from similarly situated borrowers (to the extent that, with respect to such Change in Law, such Lender has the right to do so under its credit facilities with similarly situated borrowers).
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the its holding company, as applicable, as specified in paragraph (a) or (b) above of this Section 2.16 shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 days [REDACTED – Time Period] after its receipt of the samethereof.
(d) Promptly after any Lender has determined that it will make a request for increased compensation pursuant to this Section 2.16, such Lender shall notify the Borrower. Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 2.16 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section 2.16 for any increased costs incurred or reductions suffered incurred more than nine months [REDACTED – Time Period] prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except thattherefor; provided, further, that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month [REDACTED – Time Period] period referred to above shall be extended to include the period of retroactive effect thereof).
Appears in 2 contracts
Samples: Two Year Equity Bridge Credit and Guaranty Agreement (Concordia Healthcare Corp.), Extended Equity Bridge Credit and Guaranty Agreement (Concordia Healthcare Corp.)
Increased Costs Capital Adequacy. (a) 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 account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO RateLIBOR);
(ii) subject the Administrative Agent or any Recipient Lender to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Excluded Taxes) on its loans, loan principal, letters of credit, commitments, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (in each case, other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of CreditLender; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Loan (or of maintaining its obligation to increase the cost to make any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Loan) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder Lender (whether of principal, interest or otherwise) ), then the Borrower Borrowers will pay to such Lender, the Issuing Bank or upon written request of such other RecipientLender, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Lender, to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) ), then from time to time the Borrower Borrowers shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered. Notwithstanding any other provision herein, no Lender shall demand compensation pursuant to this Section 2.16(b) as a result of a Change in Law resulting from Basel III or the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act if it shall not at the time be the general policy or practice of such Lender to demand such compensation from similarly situated borrowers (to the extent that, with respect to such Change in Law, such Lender has the right to do so under its credit facilities with similarly situated borrowers).
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the its holding company, as applicable, as specified in paragraph (a) or (b) above of this Section 2.16 shall be delivered to the Borrower Representative and shall be conclusive absent manifest error. The Borrower Borrowers shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 days Business Days after its receipt of the samethereof.
(d) Promptly after any Lender has determined that it will make a request for increased compensation pursuant to this Section 2.16, such Lender shall notify the Borrower Representative. Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 2.16 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower Borrowers shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section 2.16 for any increased costs incurred or reductions suffered incurred more than nine months 90 days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Lender notifies the Borrower Representative of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except thattherefor; provided, further, that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine90-month day period referred to above shall be extended to include the period of retroactive effect thereof).
Appears in 2 contracts
Samples: Credit and Guaranty Agreement and Pledge and Security Agreement (Lannett Co Inc), Credit and Guaranty Agreement (Lannett Co Inc)
Increased Costs Capital Adequacy. (a) If the adoption of or any Change change in any requirement of Law shallor in the interpretation or application thereof or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the Closing Date:
(i) shall subject any Lender to any tax of any kind whatsoever with respect to this Agreement or any Loan made by it, or change the basis of taxation of payments to such Lender in respect thereof (except for Non-Excluded Taxes covered by Section 2.14 and changes in the rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or deem hold applicable any reserve, special deposit, compulsory loan, insurance charge loan or similar requirement against assets ofheld by, deposits with or other liabilities in or for the account of, advances, loans or other extensions of credit by, or credit extended by any other acquisition of funds by, any office of such Lender or the Issuing Bank (except any such reserve requirement which that is reflected not otherwise included in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) determination of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable theretoEurodollar Rate; or
(iii) shall impose on any such Lender or the Issuing Bank or the London interbank market any other condition, cost or expense condition (other than Taxes) affecting this Agreement or Loans made except for Non-Excluded Taxes covered by Section 2.14 and changes in the rate of tax on the overall net income of such Lender or any Letter of Credit or participation in any Letter of CreditLender); and the result of any of the foregoing shall be is to increase the cost to such Lender, the Issuing Bank or by an amount that such other Recipient Lender deems to be material, of making making, converting into, continuing or maintaining any Loan or to increase the cost to any LenderLoans, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the any amount of receivable hereunder in respect thereof, then, in any sum received or receivable by such case, Borrower shall promptly pay such Lender, the Issuing Bank or such other Recipient hereunder upon its written demand (whether of principaltogether with reasonably detailed supporting documentation), interest or otherwise) then the Borrower will pay any additional amounts necessary to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such increased cost or reduced amount receivable. If any Lender becomes entitled to claim any additional costs incurred or reduction sufferedamounts pursuant to this paragraph, it shall promptly notify Borrower in writing (with a copy to the Administrative Agent) of the event by reason of which it has become so entitled.
(b) If any Lender or the Issuing Bank shall have determined that the adoption of or any Change change in any requirement of Law regarding capital adequacy or liquidity requirements has in the interpretation or would application thereof or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the Closing Date shall have the effect of reducing the rate of return on such Lender’s or the Issuing Banksuch corporation’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto its obligations hereunder to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company corporation could have achieved but for such Change in Law adoption, change or compliance (taking into consideration such Lender’s or the Issuing Banksuch corporation’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidityadequacy) by an amount deemed by such Lender to be material, then from time to time time, after submission by such Lender to Borrower (with a copy to the Administrative Agent) of a written request therefore (together with reasonably detailed supporting documentation), the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such Lender’s or the Issuing Bank’s holding company corporation for any such reduction sufferedreduction.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient setting forth the amount or as to any additional amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation payable pursuant to this Section 2.14 submitted by any Lender to Borrower (with a copy to the Administrative Agent) shall not constitute a waiver be conclusive in the absence of such Lender’smanifest error. Notwithstanding anything to the contrary in this Section, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section for any increased costs amounts incurred or reductions suffered more than nine six months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except therefor; provided that, if the Change in Law circumstances giving rise to such increased costs or reductions is retroactiveclaim have a retroactive effect, then the ninesuch six-month period referred to above shall be extended to include the period of such retroactive effect thereof)effect. The obligations of Borrower pursuant to this Section shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
Appears in 1 contract
Increased Costs Capital Adequacy. (ai) If the adoption, effectiveness or phase-in, after the date hereof, of any Change applicable law, rule or regulation, or any change therein, or any change in Law shallthe interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, 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:
(iA) shall subject the Lender to any Imposition or other charge with respect to any Fixed Rate Loan or the Lender's agreement to make Fixed Rate Loans, or shall change the basis of taxation of payments to the Lender of the principal of or interest on any Fixed Rate Loan or any other amounts due under this agreement in respect of the Fixed Rate Loans or the Lender's agreement to make Fixed Rate Loans (except for changes in the rate of tax on the over-all net income of the Lender); or
(B) shall impose, modify or deem applicable any reserve, special deposit, compulsory loan, deposit insurance charge or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System, but excluding, with respect to any Fixed Rate Loan, any such requirement already included in the applicable Reserve Rate) against assets of, deposits with or for the account of of, or credit extended by any by, the Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) shall impose on any the Lender or the Issuing Bank or on the London interbank market any other condition, cost condition affecting any Fixed Rate Loans or expense (other than Taxes) affecting this Agreement or the Lender's agreement to make Fixed Rate Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be is to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Fixed Rate Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lenderthe Lender under this Agreement or under any related note with respect to any Fixed Rate Loan by an amount deemed by the Lender to be material, then, within 30 days following the Borrowers' receipt of a Bank Certificate from the Lender with respect thereto, the Issuing Bank or such other Recipient hereunder Borrowers shall pay (whether of principal, interest or otherwiseand shall be jointly and severally obligated to pay) then to the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount or amounts as will the Lender certifies to be necessary to compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred increased cost or reduction sufferedin amount received or receivable.
(bii) If any the Lender or the Issuing Bank shall have determined that the adoption or phase-in after the date hereof of any Change applicable law, rule or regulation regarding capital requirements for banks or bank holding companies, or any change therein after the date hereof, or any change after the date hereof in Law the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Lender with any request or directive of such entity regarding capital adequacy (whether or liquidity requirements not having the force of law) has or would have the effect of reducing the rate of return on such the Lender’s 's capital with respect to its agreement hereunder to make Loans or the Issuing Bank’s capital with respect to any Loan (whether or on the capital of such Lender’s not then subject to any COF Rate or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Eurodollar Interest Rate) to a level below that which such the Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such the Lender’s or the Issuing Bank’s 's policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy immediately before such adoption, phase-in, change or liquiditycompliance and assuming that the Lender's capital was then fully utilized) then by any amount deemed by the Lender to be material:
(A) the Lender shall promptly after its determination of such occurrence give notice thereof to the Borrowers; and
(B) the Borrowers shall pay (and shall be jointly and severally obligated to pay) to the Lender as an additional fee from time to time time, within 30 days following the Borrower Borrowers' receipt of a Bank Certificate with respect thereto, such amount as the Lender certifies to be the amount that will compensate it for such reduction. A Bank Certificate given by the Lender claiming compensation under this Section shall pay be conclusive in the absence of manifest error. Such certificate shall set forth the nature of the occurrence giving rise to such Lender or compensation, the Issuing Bank, as the case may be, such additional amount or amounts as will compensate to be paid to the Lender hereunder and the method by which such Lenderamounts are determined. In determining any such amount, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for Lender may use any such reduction sufferedreasonable averaging and attribution methods.
(ciii) A certificate of a Lender, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay No failure on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 on any one occasion shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s its right to demand such compensation; provided that compensation on any other occasion and no failure on the Borrower part of the Lender to deliver any Bank Certificate in a timely manner shall not be required to compensate in any Lender, way reduce any obligation of the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior Borrowers to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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)Lender under this Section.
Appears in 1 contract
Samples: Loan Modification Agreement (Gza Geoenvironmental Technologies Inc)
Increased Costs Capital Adequacy. (a) If The Borrower shall pay to each Lender from time to time on demand such amounts as such Lender may determine to be reasonably necessary to compensate it or its holding company for any costs which such Lender determines are attributable to its making or maintaining Loans, purchasing or maintaining participations in Letters of Credit, or maintaining Commitments hereunder or its obligation to make any such Loans hereunder, or any reduction in any amount receivable by such Lender hereunder in respect of any such Loans, Commitments or obligation, resulting from any Regulatory Change in Law shall:
which: (i) imposechanges the basis of taxation of any amounts payable to such Lender under this Agreement in respect of any of such Loans, modify Letters of Credit or deem applicable Commitments (other than taxes imposed on the overall net income of such Lender); or (ii) imposes or modifies any reserve, special deposit, compulsory loandeposit insurance or assessment, insurance charge minimum capital, capital ratio or similar requirement against requirements relating to any extensions of credit or other assets of, or any deposits with or for other liabilities of, such Lender or any holding company of such bank (including, without limitation, a request or requirement which affects the account of or credit extended by manner in which any Lender or the Issuing Bank (except holding company of any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient thereof allocates capital resources to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on including the Commitments and obligations of such Lender hereunder). Each Lender will notify the Borrower of any Lender or event occurring after the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting date of this Agreement or Loans made by which will entitle such Lender or any Letter of Credit or participation in any Letter of Credit; to compensation pursuant to this subsection (a) as promptly as practicable after it obtains knowledge thereof and the result of any of the foregoing shall be determines to increase the cost to request such Lender, the Issuing Bank or such other Recipient of making or maintaining any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction sufferedcompensation.
(b) If any Lender or the Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or would have Without limiting the effect of reducing the rate foregoing provisions of return on this Section 2.4 (but without duplication), the Borrower shall pay to each Lender from time to time upon demand by such Lender’s Lender such amounts as the Lender may determine to be reasonably necessary to compensate such Lender for any costs which it determines are attributable to the maintenance by it or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s its holding company, if anypursuant to any law or regulation of any jurisdiction or any interpretation, as a consequence directive or request (whether or not having the force of law) of any court or governmental or monetary authority, whether in effect on the date of this Agreement or the Loans made or thereafter, of capital in respect of its Loans, its participations in Letters of Credit purchased by such Lender pursuant hereto or its obligation to make the Loans or to purchase participations in Letters of Credit issued by the Issuing Bank pursuant hereto (such compensation to include, without limitation, an amount equal to any reduction in return on assets or equity of such Lender or its holding company to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company it could have achieved but for such Change in Law law, regulation, interpretation, directive or request). The Lender will notify the Borrower (taking into consideration with a copy to the Agent) if it is entitled to compensation pursuant to this subsection (b) as promptly as practicable after it determines to request such Lender’s or the Issuing Bank’s policies and the policies compensation.
(c) Each notice delivered by any Lender pursuant to this Section 2.4 shall contain a statement of such Lender’s or the Issuing Bank’s holding company with respect Lender as to capital adequacy or liquidity) then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, any such additional amount or amounts as will compensate such Lender(including calculations thereof in reasonable detail) which shall, in the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate absence of a Lendermanifest error, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the samematters stated therein and be binding upon the Borrower. In determining such amount, any Lender may use any method of averaging and attribution that it in good faith shall deem applicable.
(d) Failure or delay on Without prejudice to the part survival of any Lenderother agreement of the Borrower hereunder or under any other Loan Document, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver agreements and obligations of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change contained in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).this
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If If, after the date hereof due to either (i)the introduction of or any Change change in Law shall:
or to the interpretation of any law or regulation by the governmental authority that promulgated or administers compliance with such law or regulation (iother than laws or regulations with respect to income taxes or any change by way of imposition or increase of reserve requirements included in the Eurodollar Reserve Percentage) imposeor (ii)the compliance with any guideline or request from any central bank or other fiscal, modify monetary or deem applicable governmental authority, rating agency or similar agency (whether or not having the force of law), and taking into account the obligations of the Liquidity Providers under the Liquidity Agreement, and otherwise in connection with EagleFunding's asset-supported financing business, any reserve, special deposit, compulsory loan, insurance charge reserve or deposit or similar requirement against assets ofshall be imposed, deposits with modified or for the account deemed applicable or, any basis of taxation shall be changed or credit extended by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing condition shall be to imposed, and there shall be any increase in the cost to such LenderEagleFunding (either directly or indirectly through any increase in the costs to the Liquidity Providers) of making, the Issuing Bank or such other Recipient of making funding, or maintaining any Loan EagleFunding Loans or to increase in the cost to any LenderEagleFunding of agreeing to make, fund, or maintain EagleFunding Loans (including the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount reduction of any sum received or amount of principal or interest receivable by such Lenderunder the Pledged Contracts), the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will pay shall from time to such Lender, the Issuing Bank or such other Recipient, as the case may betime, upon demand by EagleFunding, by the submission of the certificate described below, pay to EagleFunding, additional amounts sufficient to compensate EagleFunding, for such increased cost; 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 EagleFunding Loans and any other amounts as will compensate 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 Lender90th 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 EagleFunding or the Deal Agent on behalf of EagleFunding shall be conclusive and binding for all purposes, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction sufferedabsent manifest error.
(b) If any Lender of EagleFunding or any Liquidity Provider determines that compliance with any law or regulation or any guideline or request or any written interpretation from any central bank or other fiscal, monetary or governmental authority, rating agency or similar agency (whether or not having the Issuing Bank shall have determined that any Change in Law regarding force of law) which is introduced, implemented or received by EagleFunding or such Liquidity Provider after the Effective Date, affects or would affect capital adequacy or liquidity requirements the amount of capital required or expected to be maintained by EagleFunding or such Liquidity Provider or any corporation controlling EagleFunding or such Liquidity Provider and that the amount of such capital is increased by or based upon the EagleFunding Loans or the existence of this Credit Agreement, or upon the "Advances" of a Liquidity Provider, or such Liquidity Provider's commitment to lend under the 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 such Lender’s capital, then, upon demand by EagleFunding or the Issuing Bank’s capital or Deal Agent on the capital of such Lender’s or the Issuing Bank’s holding companyits behalf, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or submission of the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) then from time to time certificate described below, the Borrower shall pay to such Lender or the Issuing BankEagleFunding, from time to time as specified by EagleFunding (as the case may be), such additional amount or amounts as will sufficient to compensate such LenderEagleFunding, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
relevant Liquidity Provider, (c) A certificate of a Lender, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be), notifies in the light of such circumstances, to the extent that EagleFunding (as the case may be) reasonably determines such increase in capital to be allocable to the EagleFunding Loans or the existence of this Credit Agreement, or upon the "Advances" of a Liquidity Provider or such Liquidity Provider's commitment to lend under the Liquidity Agreement and other commitments of that type, or to the extent that EagleFunding 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 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 EagleFunding Loans and any other amounts outstanding hereunder are repaid in full and in cash, and the Borrower shall have terminated the obligations of the Change in Law giving rise other parties hereto, prior to such increased costs or reductions, and 90th day following the Borrower's receipt of such Lender’scertificate). A certificate setting forth in reasonable detail such amounts submitted to the Borrower by EagleFunding or the Deal Agent on its behalf, the Issuing Bank’s or other such Recipient’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)conclusive and binding for all purposes, absent manifest error.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If any Change in Law shallLaw:
(i) imposesubjects the Lender to any Taxes, modify or deem change the basis of taxation of payments to the Lender in respect of its Loans (excluding Excluded Taxes), or
(ii) imposes, increases, modifies, or deems applicable any reserve, special deposit, compulsory loanassessment, insurance charge charge, special deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by any Lender or by, the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified TaxesLender, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market imposes any other conditioncondition the result of which is to increase the cost the Lender of making, cost funding or expense (other than Taxes) affecting this Agreement maintaining Loans, or reduces any amount receivable by the Lender in connection with the Loans, or requires the Lender to make any payment calculated by reference to the amount of Loans made or interest received by such it, by an amount deemed material by the Lender or any Letter in the exercise of Credit or participation in any Letter of Credit; its reasonable discretion, and the result of any of the foregoing shall be is to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Loan its Loans or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Commitments or to reduce the amount of any sum return received by the Lender in connection with such Loans or receivable by such LenderCommitments, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will shall pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred increased cost or reduction sufferedin amount received.
(b) If any the Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such the Lender’s or the Issuing Bank’s capital or on the capital of such the Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans a Loan made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Lender to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such the Lender’s or the Issuing Bank’s policies and the policies of such the Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) adequacy), then from time to time the Borrower shall will pay to such the Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such the Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate . For purposes of a Lenderthis Section, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) “Change in Law” includes (i) any change after the date of this Agreement in the Risk-Based Capital Guidelines (as defined below) or (ii) any adoption of or change in any other law, governmental or 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 that affects the amount of capital required or expected to be maintained by the Lender or any corporation controlling the Lender and (b) above shall be delivered to “Risk-Based Capital Guidelines” means (i) the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, risk-based capital guidelines in effect in the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay United States on the part date of this Agreement, including transition rules, and (ii) the corresponding capital regulations promulgated by regulatory authorities outside the United States including transition rules, and any Lender, the Issuing Bank or other amendments to such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months regulations adopted prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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)this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Gaming Partners International CORP)
Increased Costs Capital Adequacy. The Borrower agrees that if any Applicable Law now or hereafter in effect and whether or not presently applicable to any Lender or any request, guideline or directive of any Governmental Authority (awhether or not having the force of law and whether or not failure to comply therewith would be lawful) If or the interpretation or administration thereof by any Change in Law shall:
Governmental Authority charged with administration thereof, shall (ii)(A) impose, affect, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge capital maintenance or similar requirement against assets of, deposits with or for the account of or credit extended by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified TaxesanyLoan, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender any other condition regarding any Loan, this Agreement, any Note or the Issuing Bank facilities provided hereunder or the London interbank market any other condition, cost (C) impose or expense (other than Taxes) affecting this Agreement or Loans made increase a requirement by such Lender (or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be such Lender's parent) to increase the cost allocate capital resources to such Lender, the Issuing Bank or such other Recipient of making or maintaining any Loan or 's Commitment to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient make Loans hereunder (whether of principal, interest or otherwise) then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements which has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s 's capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender could have achieved (taking into consideration such Lender's then existing policies with respect to capital adequacy and assuming full utilization of such Lender's capital) or (ii) subject such Lender to any taxes or similar charges (other than taxes on or measured by income of such Lender) on the recording, registration, notarization or other formalization of the Loans or the Issuing Bank Notes, and the result of any circumstance referred to in clause (i) or (ii) above shall be to increase the cost to such Lender of making, funding or maintaining any Loan or to reduce the amount of any sum receivable by such Lender or such Lender’s or the Issuing Bank’s holding company 's rate of return on capital with respect to any Loan to a level below that which such Lender could have achieved but for such Change imposition, modification or deemed applicability by an amount deemed by such Lender (in Law (taking into consideration the exercise of its reasonable judgment) to be material, then, upon demand by such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) then from time to time , the Borrower shall immediately pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary which shall be sufficient to compensate such LenderLender for such increased cost, the Issuing Bank tax or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest errorreduced rate of return. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on not be responsible to any Lender for any such certificate delivered costs incurred by it within 10 days after its receipt such Lender as a result of any of the same.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered aforementioned events occurring more than nine months 90 days prior to the date that Borrower's receipt of notice of such claim from such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).
Appears in 1 contract
Samples: Loan and Security Agreement (Standard Commercial Corp)
Increased Costs Capital Adequacy. (a) If The Borrower shall pay to each Lender from time to time on demand such amounts as Lender may determine to be reasonably necessary to compensate it or its holding company for any costs which Lender determines are attributable to its making or maintaining Loans, issuing Letters of Credit, or maintaining Commitments hereunder, or any reduction in any amount receivable by Lender hereunder in respect of any such Loans, Letters of Credit or Commitments, resulting from any Regulatory Change in Law shall:
which: (i) imposechanges the basis of taxation of any amounts payable to Lender under this Agreement in respect of any of such Loans, modify Letters of Credit or deem applicable Commitments (other than taxes imposed on the overall net income of Lender); or (ii) imposes or modifies any reserve, special deposit, compulsory loandeposit insurance or assessment, insurance charge minimum capital, capital ratio or similar requirement against relating to any extensions of credit or other assets of, or any deposits with or for other liabilities of, Lender or any holding company of Lender (including a request or requirement which affects the account of or credit extended by any manner in which Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient holding company thereof allocates capital resources to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on including the Commitments). Lender will notify the Borrower of any Lender or event occurring after the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting date of this Agreement or Loans made by which will entitle Lender to compensation pursuant to this subsection (a) as promptly as practicable after it obtains knowledge thereof and determines to request such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient of making or maintaining any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction sufferedcompensation.
(b) If any Lender or the Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or would have Without limiting the effect of reducing the rate foregoing provisions of return on this Section 2.4 (but without duplication), the Borrower shall pay to Lender from time to time upon demand by Lender such Lender’s amounts as the Lender may determine to be reasonably necessary to compensate Lender for any costs which it determines are attributable to the maintenance by it or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s its holding company, if anypursuant to any law or regulation of any jurisdiction or any interpretation, as a consequence directive or request (whether or not having the force of law) of any court or governmental or monetary authority, in effect after the date of this Agreement or the Loans made or participations Agreement, of capital in respect of its Loans, Letters of Credit purchased by or Commitments (such compensation to include an amount equal to any reduction in return on assets or equity of Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto its holding company to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company it could have achieved but for such Change in Law (taking into consideration such Lender’s law, regulation, interpretation, directive or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) then from time to time request). The Lender will notify the Borrower if it is entitled to compensation pursuant to this subsection (b) as promptly as practicable after it determines to request such compensation.
(c) Each notice delivered by Lender pursuant to this Section 2.4 shall pay contain a statement of Lender as to such Lender or the Issuing Bank, as the case may be, any such additional amount or amounts as will compensate such Lender(including calculations thereof in reasonable detail) which shall, in the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate absence of a Lender, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt be presumed correct of the samematters stated therein and be binding upon the Borrower. In determining such amount, Lender may use any method of averaging and attribution that it in good faith shall deem applicable.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If after the date of this Agreement any Change change in Law shall:
any applicable Governmental Requirement (iincluding, without limitation, the adoption of any new Governmental Requirement) or in the interpretation or administration thereof by any central bank or comparable agency or any other Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets Property of, deposits with or for the account of or credit extended by any Lender or the Issuing Bank any Issuer (except any such reserve requirement which that is reflected in the Adjusted LIBO RateEurodollar Rate Reserve Percentage);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) shall impose on any such Lender or the Issuing Bank such Issuer or the London interbank market any other condition, cost or expense (other than Taxes) condition affecting this Agreement or Eurodollar Rate Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; therein, and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank Lender or such other Recipient Issuer of making or maintaining any Eurodollar Rate Loan or to increase the cost to any Lender, the Issuing Bank such Lender or such other Recipient Issuer of issuing or maintaining any Letter of Credit Credit, paying or funding any draw request thereunder or purchasing or maintaining a participation in any Letter of Credit therein, or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank Lender hereunder or such other Recipient Issuer hereunder or under any Letter of Credit Reimbursement Agreement (whether of principal, interest interest, fees or otherwise) by an amount reasonably determined by such Lender or such Issuer to be material, then the Borrower will pay to such Lender, the Issuing Bank Lender or such other RecipientIssuer, as the case may be, upon demand following receipt of a notice from such Lender or such Issuer, as the case may be, to such effect, such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such other RecipientIssuer, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank any Issuer shall have determined that (i) the adoption after the date of this Agreement of any Change Governmental Requirement, guideline or directive regarding capital adequacy, (ii) any change after the date of this Agreement in Law any such Governmental Requirement, guideline or directive or in the interpretation or administration thereof after the date of this Agreement by any central bank or comparable agency or any other Governmental Authority charged with the interpretation or administration thereof or (iii) compliance by any Lender (or any lending office of such Lender) or any Issuer or any Lender's or any Issuer's holding company with any request or directive regarding capital adequacy issued after the date of this Agreement under any Governmental Requirement or liquidity requirements guideline (whether or not having the force of law) of any Governmental Authority has or would have the effect of reducing the rate of return on such Lender’s 's or the Issuing Bank’s such Issuer's capital or on the capital of such Lender’s 's or the Issuing Bank’s such Issuer's holding company, if any, as a consequence of this Agreement Agreement, the Commitment of such Lender or the Loans made by such Lender or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank such Issuer pursuant hereto to a level below that which such Lender or the Issuing Bank such Issuer or such Lender’s 's or the Issuing Bank’s such Issuer's holding company could have achieved but for such Change in Law applicability, adoption, change or compliance (taking into consideration such Lender’s 's or the Issuing Bank’s such Issuer's policies and the policies of such Lender’s 's or the Issuing Bank’s such Issuer's holding company with respect to capital adequacy adequacy) by an amount reasonably determined by such Lender or liquidity) such Issuer to be material, then from time to time the Borrower shall will pay to such Lender or the Issuing Banksuch Issuer, as the case may be, following receipt of a notice from such Lender or such Issuer, as the case may be, to such effect, such additional amount or amounts as will shall compensate such Lender, the Issuing Bank Lender or such Issuer or such Lender’s 's or the Issuing Bank’s such Issuer's holding company for any such reduction suffered.
(c) A certificate of Any Issuer or any Lender requiring payment under this Section 3.05 shall deliver to the Borrower a Lender, the Issuing Bank or such other Recipient statement reasonably setting forth the amount or amounts necessary to compensate such Lenderand manner of determination thereof, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above which statement shall be delivered to the Borrower and shall be conclusive conclusive, absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on Each Lender will promptly notify the part Borrower of any Lender, event occurring after the Issuing Bank or other date of this Agreement of which it has knowledge which will entitle such Recipient Lender to demand compensation pursuant to this Section 2.14 shall not constitute 3.05 and will designate a waiver different Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the judgment of such Lender’s, the Issuing Bank’s or such other Recipient’s right be otherwise disadvantageous to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).
Appears in 1 contract
Increased Costs Capital Adequacy. (a) 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 account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate)Lender;
(ii) subject the Administrative Agent or any Recipient Lender to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Excluded Taxes) on its loans, loan principal, letters of credit, commitments, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (in each case, other than Taxes) affecting this Agreement or Term Loans made by such Lender or any Letter of Credit or participation in any Letter of CreditLender; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Term Loan (or of maintaining its obligation to increase the cost to make any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Term Loan) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder Lender (whether of principal, interest or otherwise) ), then the Borrower will pay to such Lender, the Issuing Bank or upon written request of such other RecipientLender, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Term Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Lender, to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) ), then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered. Notwithstanding any other provision herein, no Lender shall demand compensation pursuant to this Section 2.16(b) as a result of a Change in Law resulting from Basel III or the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act if it shall not at the time be the general policy or practice of such Lender to demand such compensation from similarly situated borrowers (to the extent that, with respect to such Change in Law, such Lender has the right to do so under its credit facilities with similarly situated borrowers).
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the its holding company, as applicable, as specified in paragraph (a) or (b) above of this Section 2.16 shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 days Business Days after its receipt of the samethereof.
(d) Promptly after any Lender has determined that it will make a request for increased compensation pursuant to this Section 2.16, such Lender shall notify the Borrower. Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 2.16 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section 2.16 for any increased costs incurred or reductions suffered incurred more than nine months 90 days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except thattherefor; provided, further, that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine90-month day period referred to above shall be extended to include the period of retroactive effect thereof).
Appears in 1 contract
Samples: Second Lien Credit and Guaranty Agreement (Lannett Co Inc)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, deposit or similar requirement (including any compulsory loanloan requirement, insurance charge or similar requirement other assessment) against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Eurodollar Rate)) or Issuing Bank;
(ii) impose on any Lender or Issuing Bank or the London interbank market any other condition, cost or expense affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein;
(iii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank Lender or such other Recipient of making or maintaining any Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to any such Lender, the such Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the such Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) ), then the Borrower will pay to such Lender, the such Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the such Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the any Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the such Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit purchased by held by, such Lender pursuant hereto Lender, or the Letters of Credit issued by the such Issuing Bank pursuant hereto Bank, to a level below that which such Lender or the such Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the such Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or and liquidity) ), then from time to time the Borrower shall will pay to such Lender or the such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Lender or Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender, the Lender or an Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Lender or Issuing Bank or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph (a) or (b) above of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such LenderLender or Issuing Bank, as the Issuing Bank or such other Recipient case may be, the amount shown as due on any such certificate delivered by it within 10 15 days after its receipt of the samethereof.
(d) Failure or delay on the part of any Lender, the Lender or Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the ’s or Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the a Lender or an Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered incurred more than nine months 270 days prior to the date that such Lender, the Lender or Issuing Bank or other RecipientBank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the ’s or Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine270-month day period referred to above shall be extended to include the period of retroactive effect thereof; provided, further, a Lender shall not be entitled to submit a claim for compensation based on a Change in Law unless such Lender shall have determined that the making of such claim is consistent with its general practices under similar circumstances in respect of similarly situated borrowers with credit facilities entitling it to make such claims (it being understood that no Lender shall be required to disclose any confidential or proprietary information in connection with such determination or the making of such claim).
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If The Borrower shall pay directly to each Lender from time to time such amounts as such Lender may determine to be necessary to compensate such Lender for any increase in costs that such Lender determines are attributable to its making or maintaining of its Commitment or the loans evidenced by its Equipment Notes 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 Commitments, such loans or such arrangements (such increases in costs and reductions in amounts receivable being herein called “Additional Costs”), in either case applicable to the period commencing sixty (60) days prior to Lender’s notification thereof pursuant to Section 4.4(c) and resulting from any Regulatory Change in Law shallthat:
(i1) impose, modify or deem applicable imposes any tax that is the functional equivalent of any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of or credit extended by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and sort covered by clause (C2) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable theretobelow; or
(iii2) impose on imposes or modifies any Lender reserve, special deposit or the Issuing Bank similar requirements (including any Reserve Requirement) relating to any extensions of credit or the London interbank market other assets of, or any deposits with or other liabilities of, such Lender, or any such obligations; or
(3) imposes any other condition, cost or expense (other than Taxes) condition affecting this Agreement or Loans made by such Lender its Equipment Notes (or any Letter of Credit such extensions of credit or participation in liabilities) or any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient of making or maintaining any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction sufferedobligation.
(b) If any Lender or the Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or would have Without limiting the effect of reducing the foregoing provisions of this Section 4.4 (but without duplication), the Borrower shall pay directly to each Lender from time to time on request such amounts as such Lender shall determine to be necessary to compensate such Lender (or, without duplication, the holding company of which such Lender is a subsidiary) for any increase in costs that are attributable to the maintenance by such Lender (or any lending office or such holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful so long as compliance therewith is standard banking practice in the relevant jurisdiction) of any court or governmental or monetary authority following (i) any Regulatory Change or (ii) implementing any risk-based capital guideline or other similar requirement issued by any government or governmental or supervisory authority at the national level (including the implementation of the capital guidelines commonly known as Basle II), of capital in respect of its Commitments or Equipment Notes or funding arrangements utilized in connection with the Equipment Notes. Such compensation shall include, without limitation, an amount equal to any reduction of the rate of return on such Lender’s assets or the Issuing Bank’s capital or on the capital equity of such Lender’s Lender (or the Issuing Bank’s any lending office or such bank holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could ) would have achieved but for such Change law, regulation, interpretation, directive or request, but shall be limited to any such increase in Law costs or reductions attributable for the period commencing sixty (taking into consideration such 60) days prior to Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect notification thereof pursuant to capital adequacy or liquidity) then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction sufferedSection 4.4(c).
(c) A certificate of a Lender, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above Each Lender shall be delivered to notify the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender, event occurring after the Issuing Bank or other date of this Agreement entitling such Recipient Lender to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to of this Section 4.4 as promptly as practicable following its actual knowledge thereof. Each Lender will use commercially reasonable efforts (at the Borrower’s expense) to attempt to mitigate the amount of the Additional Costs associated with such event, including designating a different lending office for any increased costs incurred the Equipment Notes of such Lender affected by such event if such designation will avoid the need for, or reductions suffered more than nine months prior to reduce the date that amount of, such compensation and will not, in the opinion of such Lender, the Issuing Bank result in any economic, legal or regulatory disadvantage to such Lender (other Recipient, as the case may be, notifies than economic disadvantages for which the Borrower agrees to indemnify such Lender and which indemnity is acceptable to such Lender in its discretion acting reasonably and in good faith based on its credit assessment of the Change Borrower). If after using commercially reasonably efforts as aforesaid such Lender is not able to mitigate the amount of or the need for such compensation to the reasonable satisfaction of Borrower within thirty (30) days of such Lender’s notice described in Law Section 4.4(c) hereof, Borrower may prepay in accordance with Section 2.10 of the Applicable Mortgage the unpaid Original Amount of the affected Equipment Notes plus interest accrued thereon and any LIBOR Breakage Amount. Each Lender will furnish to the Borrower an officer’s certificate setting forth in reasonable detail (i) the events giving rise to such increased Additional Costs, (ii) the basis for determining and allocating such Additional Costs and (iii) the amount of each request by such Lender for compensation under paragraph (a) or (b) of this Section 4.4 (subject, however, to any limitations such Lender may require in respect of disclosure of confidential information relating to its capital structure), together with a statement that the determinations and allocations made in respect of the Additional Costs comply with the provisions of this Section 4.4, including as provided in the last sentence of this paragraph (c). Determinations and allocations by any Lender for purposes of this Section 4.4 of the effect of any Regulatory Change pursuant to paragraph (a) of this Section 4.4, or of the effect of capital maintained pursuant to paragraph (b) of this Section 4.4, on its costs or reductionsrate of return of maintaining Equipment Notes or its funding, or on amounts receivable by it in respect of Equipment Notes, and of the amounts required to compensate such Lender’sLender under this Section 4.4, shall be conclusive, absent manifest error; provided, that such determinations and allocations are made on a reasonable basis and, in the Issuing Bank’s case of allocations, are made fairly.
(d) The Borrower shall not be required to make payments under this Section 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 other (ii) the claim arises out of a relocation by such Recipient’s intention to claim compensation therefor Lender of its lending office (except thatany such relocation effected pursuant to Section 4.4(c)), if or (iii) such Lender is not seeking similar compensation for such costs from its borrowers generally in commercial equipment loans, or (iv) the Change claim arises as the result of any law or regulation or any interpretation, directive or request of any court or governmental or monetary authority in Law giving rise to any jurisdiction other than an Accepted Jurisdiction, unless, in the case of Section 4.4(d)(iv), such increased costs or reductions claim is retroactive, then made by a Lender that is a United States branch of a foreign commercial bank that has its principal place of business in a country that is a member of the nineOrganization for Economic Co-month period referred to above shall be extended to include operation and Development as of the period date of retroactive effect thereof)this Agreement.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If after the date of this Agreement the adoption of or any Change change in any Requirement of Law shallor in the interpretation or administration thereof by any Governmental Authority (whether or not having the force of law) or compliance by Agent 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 Closing Date:
(i1) shall change the basis of taxation of payments to Agent 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 Agent or such Lender, as the case may be, by the jurisdiction in which such Person has its principal office (or lending office) or by any political subdivision or taxing authority therein); or
(2) shall impose, modify or deem hold applicable any reserve, special deposit, compulsory loan, insurance charge loan or other similar requirement against assets of, deposits with or for the account of or credit extended by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitmentsof, or other obligationsextensions of credit by, any office of Agent or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender (which requirement, with respect to Loans, is not otherwise included in the determination of the Adjusted Eurodollar Rate or the Issuing Bank or the London interbank market any other conditionBase Rate, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Creditas applicable); and the result of any of the foregoing shall be is to increase the cost to such LenderPerson of making, the Issuing Bank or such other Recipient of making converting into, continuing or maintaining any Loan Loans or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or purchasing and maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit therein, or to reduce the any amount of receivable hereunder in respect thereof, then, in any sum received such case, Borrower shall pay to Agent or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such any additional amount or amounts as will necessary to compensate such LenderPerson for such increased cost or reduced receipt, together with interest on such amount from the Issuing Bank date of the required payment until payment in full thereof at a rate equal at all times to the Base Rate or such other Recipientthe Default Rate, as applicable. If any Person becomes entitled to claim any additional amounts pursuant to this subsection, it shall promptly notify Borrower, through Agent, of the case may be, for such additional costs incurred or reduction sufferedevent 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 hereunder.
(b) If Agent or any Lender or the Issuing Bank shall have determined that the applicability of any Change law, rule, regulation or guideline adopted after the Closing Date pursuant to or arising out of the July 1988 report of the Basic Committee on Banking Regulations and Supervisory Practices entitled "International Convergence of Capital Measurement and Capital Standards", or the adoption after the Closing Date of any other law, rule, regulation or guideline regarding capital adequacy, or any change in Law any of the foregoing or 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 31 by any such Person or any such Person's holding company with any request or directive regarding capital adequacy (whether or liquidity requirements not 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 such Lender’s Person's or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, 's capital as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto its obligations hereunder to a level below that which such Lender or the Issuing Bank Person or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law adoption, change or compliance (taking into consideration such Lender’s Person's or the Issuing Bank’s such holding company's policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidityadequacy) by an amount deemed by such Person to be material, then from time to time the time, after submission by such Person to Borrower (with a copy to Agent) of a written request therefor, Borrower shall pay to such Lender or the Issuing Bank, as the case may be, Person such additional amount or amounts as will compensate such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company Person for any such reduction suffered.
(c) A certificate of a Agent or the applicable Lender, as the Issuing Bank or such other Recipient case may be, setting forth the such amount or amounts as shall be necessary to compensate such Lender, the Issuing Bank Person or such other Recipient or the its holding company, as applicable, company as specified in paragraph (a) or (b) above above, as the case may be, shall be delivered to the Borrower (with a copy to Agent) and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Person the amount shown as due on any such certificate delivered by it within 10 days Business Days after its receipt of the same.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).
Appears in 1 contract
Samples: Revolving Credit Agreement (Hospitality Properties Trust)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, deposit or similar requirement (including any compulsory loanloan requirement, insurance charge or similar requirement other assessment) against assets of, deposits with or for the account of of, or credit extended by by, any Lender (except any such reserve requirement reflected in the Adjusted Eurodollar Rate) or the Issuing Bank;
(ii) impose on any Lender or the Issuing Bank (except or the London interbank market any other condition, cost or expense affecting this Agreement or Loans made by such reserve requirement which is reflected in the Adjusted LIBO Rate)Lender or any Letter of Credit or participation therein;
(iiiii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses clause (b) through (dc) of the definition of Excluded Taxes and (C) Other Connection Income Taxes that are imposed on or measured by net income, however denominated, or that are franchise Taxes or branch profits Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making or maintaining any Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender, the Issuing Bank or such other Recipient of making or maintaining any Loan or to increase the cost to any Lenderparticipating in, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) ), then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit purchased by held by, such Lender pursuant hereto Lender, or the Letters of Credit issued by the Issuing Bank pursuant hereto Bank, to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) adequacy), then from time to time the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender, Lender or the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, Lender or the Issuing Bank or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph (a) or (b) above of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, Lender or the Issuing Bank or such other Recipient Bank, as the case may be, the amount shown as due on any such certificate delivered by it within 10 15 days after its receipt of the samethereof.
(d) Failure or delay on the part of any Lender, Lender or the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, ’s or the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, a Lender or the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered incurred more than nine months 270 days prior to the date that such Lender, Lender or the Issuing Bank or other RecipientBank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, ’s or the Issuing Bank’s or other such Recipient’s Banks intention to claim compensation therefor (except therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine270-month day period referred to above shall be extended to include the period of retroactive effect thereof).
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, deposit or similar requirement (including any compulsory loanloan requirement, insurance charge or similar requirement other assessment) against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Eurodollar Rate)) or Issuing Bank;
(ii) impose on any Lender or Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein;
(iii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through - (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank Lender or such other Recipient of making or maintaining any Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to any such Lender, the Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) ), then the Borrower Borrowers will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit purchased by held by, such Lender pursuant hereto Lender, or the Letters of Credit issued by the Issuing Bank pursuant hereto Bank, to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) adequacy), then from time to time the Borrower shall Borrowers will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Lender or Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender, the Lender or Issuing Bank or such other Recipient setting forth in reasonable detail the amount or amounts necessary to compensate such Lender, the Lender or Issuing Bank or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph (a) or (b) above of this Section 2.19 shall be delivered to the Borrower Borrowers and shall be conclusive absent manifest error. The Borrower Borrowers shall pay such LenderLender or Issuing Bank, as the Issuing Bank or such other Recipient case may be, the amount shown as due on any such certificate delivered by it within 10 fifteen days after its receipt of the samethereof.
(d) Failure or delay on the part of any Lender, the Lender or Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 2.19 shall not constitute a waiver of such Lender’s, the ’s or Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower Borrowers shall not be required to compensate any Lender, the a Lender or Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section 2.19 for any increased costs incurred or reductions suffered incurred more than nine months 270 days prior to the date that such Lender, the Lender or Issuing Bank or other RecipientBank, as the case may be, notifies the Borrower Borrowers of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’s Issuing Banks intention to claim compensation therefor (except therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine270-month day period referred to above shall be extended to include the period of retroactive effect thereof).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (AVG Technologies N.V.)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) imposeLender determines that, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of or credit extended by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the as a result of any of the foregoing Change in Law, there shall be to any increase in the cost to such Lender, the Issuing Bank or such other Recipient of making or maintaining any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient Lender of issuing or maintaining any Letter participating in Letters of Credit Credit, or purchasing or maintaining a participation reduction in any Letter of Credit or to reduce the amount of any sum received or receivable by such LenderLender in connection with any of the foregoing (excluding for purposes of this Section 2.04(a) any such increased costs or reduction in amount resulting from Taxes, the Issuing Bank or including Other Taxes (as to which Section 2.09 shall govern)), in each case in an amount reasonably deemed by such other Recipient hereunder (whether of principalLender to be material, interest or otherwise) then the Borrower will shall pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction. The applicable Lender shall deliver to the Borrower a certificate setting forth in reasonable detail the amounts necessary to compensate such Lender, and the Issuing Bank or Borrower shall pay such other Recipient, Lender such amount shown as the case may be, for due on any such additional costs incurred or reduction sufferedcertificate within ten (10) days after receipt thereof.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s Lender or the Issuing Bank’s holding company, if any, any corporation controlling such Lender as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law obligations hereunder (taking into consideration such Lender’s or the Issuing Bank’s its policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or and such Lender’s or desired return on capital), in each case in an amount reasonably to be deemed by such Lender material. The applicable Lender shall deliver to the Issuing Bank’s holding company for any such reduction suffered.
(c) A Borrower a certificate of a Lender, the Issuing Bank or such other Recipient setting forth in reasonable detail the amount or amounts necessary to compensate such Lender, and the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 ten (10) days after its receipt of the samethereof.
(dc) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the The Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section for any increased costs incurred or reductions suffered more than nine months 120 days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’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 nine120-month day period referred to above shall be extended to include the period of retroactive effect thereof).
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If The Borrower shall pay to each Lender from time to time on demand such amounts as such Lender may determine to be reasonably necessary to compensate it or its holding company for any costs which such Lender determines are attributable to its making or maintaining Loans, or maintaining Commitments hereunder or its obligation to make any such Loans hereunder, or any reduction in any amount receivable by such Lender hereunder in respect of any such Loans, Commitments or obligation, resulting from any Regulatory Change in Law shall:
which: (i) impose, modify changes the basis of taxation of any amounts payable to such Lender under this Agreement in respect of any of such Loans or deem applicable Commitments (other than taxes imposed on the overall net income of such Lender); or (ii) imposes or modifies any reserve, special deposit, compulsory loandeposit insurance or assessment, insurance charge minimum capital, capital ratio or similar requirement against requirements relating to any extensions of credit or other assets of, or any deposits with or for other liabilities of, such Lender or any holding company of such bank (including, without limitation, a request or requirement which affects the account of or credit extended by manner in which any Lender or the Issuing Bank (except holding company of any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient thereof allocates capital resources to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on including the Commitments and obligations of such Lender hereunder). Each Lender will notify the Borrower of any Lender or event occurring after the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting date of this Agreement or Loans made by which will entitle such Lender or any Letter of Credit or participation in any Letter of Credit; to compensation pursuant to this clause (a) as promptly as practicable after it obtains knowledge thereof and the result of any of the foregoing shall be determines to increase the cost to request such Lender, the Issuing Bank or such other Recipient of making or maintaining any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction sufferedcompensation.
(b) If any Lender or the Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or would have Without limiting the effect of reducing the rate foregoing provisions of return on this Section 2.4 (but without duplication), the Borrower shall pay to each Lender from time to time upon demand by such Lender’s Lender such amounts as the Lender may determine to be reasonably necessary to compensate such Lender for any costs which it determines are attributable to the maintenance by it or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s its holding company, if anypursuant to any law or regulation of any jurisdiction or any interpretation, as a consequence directive or request (whether or not having the force of law) of any court or governmental or monetary authority, whether in effect on the date of this Agreement or thereafter, of capital in respect of its Loans or its obligation to make the Loans made hereunder (such compensation to include, without limitation, an amount equal to any reduction in return on assets or participations in Letters equity of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto its holding company to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company it could have achieved but for such Change in Law law, regulation, interpretation, directive or request). The Lender will notify the Borrower with a copy to the Agent) if it is entitled to compensation pursuant to this clause (taking into consideration b) as promptly as practicable after it determines to request such Lender’s or the Issuing Bank’s policies and the policies compensation.
(c) Each notice delivered by any Lender pursuant to this Section 2.4 shall contain a statement of such Lender’s or the Issuing Bank’s holding company with respect Lender as to capital adequacy or liquidity) then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, any such additional amount or amounts as will compensate such Lender(including calculations thereof in reasonable detail) which shall, in the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate absence of a Lendermanifest error, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the samematters stated therein and be binding upon the Borrower. In determining such amount, any Lender may use any method of averaging and attribution that it in good faith shall deem applicable.
(d) Failure or delay on Without prejudice to the part survival of any Lenderother agreement of the Borrower hereunder or under any other Loan Document, the Issuing Bank agreements and obligations of the Borrower contained in this Section 2.4 shall survive the payment in full of principal, interest and other amounts payable hereunder and under the Notes and the other Loan Documents.
(e) Notwithstanding anything in this Section 2.4 to the contrary, to the extent that notice is given by any Lender to the Borrower of any additional amount owing to such Lender under this Section 2.4 more than 360 days after the occurrence of the event giving rise to such obligation, such Lender shall not be entitled to compensation under this Section 2.4 for any amounts incurred or other accruing 360 days prior to the giving of such Recipient notice to demand Borrower.
(f) Upon the receipt by the Borrower from any Lender (an "Affected Lender") of a claim for compensation pursuant to this Section 2.14 shall not constitute a waiver 2.4 or Section 3.5, the Borrower may (i) request one or more of the Lenders to acquire all or part of such Affected Lender’s, the Issuing Bank’s or 's Loans and Revolving Loan Commitment (provided that no such other Recipient’s right Lender shall have any obligation to demand so acquire or assume all or any part of such compensation; provided that Affected Lender's Loans and Revolving Loan Commitment), or (ii) designate a Replacement Lender reasonably satisfactory to the Borrower Agent. Any such designation of a Replacement Lender under clause (ii) shall be subject to the prior written consent of the Agent, which consent shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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)unreasonably withheld.
Appears in 1 contract
Samples: Credit Agreement (Internationale Nederlanden Capital Corp)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) impose on any Lender or the London interbank market any other condition affecting this Agreement or Eurodollar Rate Loans made by such Lender; or
(iii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense thereto (other than (A) Indemnified Taxes and (B) Other Connection Taxes on gross or net income, profits or revenue (including value-added or similar Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit)); and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank Lender or such other Recipient of making or maintaining any Eurodollar Rate Loan (or of maintaining its obligation to increase the cost to make any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Loan) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) ), then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy requirements or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) ), then from time to time the Borrower shall will pay to such Lender or the Issuing BankLender, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph (a) or (b) above of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, as the Issuing Bank or such other Recipient case may be, the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the samethereof.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section for any increased costs incurred or reductions suffered incurred more than nine months 180 days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine180-month day period referred to above shall be extended to include the period of retroactive effect thereof).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Douglas Dynamics, Inc)
Increased Costs Capital Adequacy. (a) If The Borrowers agree to pay to each Lender from time to time on demand such amounts as each Lender may determine to be reasonably necessary to compensate it for any costs which such Lender determines are attributable to its making or maintaining Loans hereunder, or any reduction in any amount receivable by Lender hereunder in respect of any such Loans, resulting from any Regulatory Change in Law shall:
which: (i) impose, modify changes the basis of taxation of any amounts payable to such Lender under this Agreement in respect of any of such Loans (other than taxes imposed on the overall net income or deem applicable franchise taxes of such Lender); or (ii) imposes or modifies any reserve, special deposit, compulsory loandeposit insurance or assessment, insurance charge minimum capital, capital ratio or similar requirement against relating to any extensions of credit or other assets of, or any deposits with or for the account of or credit extended by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other conditionof, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter holding company of Credit such Lender (including a request or participation requirement which affects the manner in any Letter of Credit; and which such Lender or the result holding company thereof allocates capital resources to commitments). Each such Lender will notify the Borrower Representative of any event occurring after the date of the foregoing shall be this Agreement which will entitle such Lender to increase the cost compensation pursuant to this Subsection (a) as promptly as practicable after it obtains knowledge thereof and determines to request such Lender, the Issuing Bank or such other Recipient of making or maintaining any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction sufferedcompensation.
(b) If any Lender or the Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or would have Without limiting the effect of reducing the rate foregoing provisions of return on this SECTION 3.5.2 (but without duplication), the Borrowers agree to pay to each Lender from time to time upon demand by such Lender’s Lender such amounts as each such Lender may determine to be reasonably necessary to compensate such Lender for any costs which it determines are attributable to the maintenance by it or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s its holding company, if anypursuant to any law or regulation of any jurisdiction or any interpretation, as a consequence directive or request (whether or not having the force of law) of any court or governmental or monetary authority, in effect after the date of this Agreement Agreement, of capital in respect of its Loans (such compensation to include an amount equal to any reduction in return on assets or the Loans made or participations in Letters equity of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto its holding company to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company it could have achieved but for such Change in Law (taking into consideration law, regulation, interpretation, directive or request). Each such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) then from time to time Lender will notify the Borrower shall pay Representative if it is entitled to compensation pursuant to this Subsection (b) as promptly as practicable after it determines to request such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction sufferedcompensation.
(c) A certificate Each Lender agrees that as promptly as is reasonably practical after it becomes aware of a Lenderany circumstances referred to in this SECTION 3.5.2 above which would result in any such increased costs, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary affected Lender shall use commercially reasonable efforts to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower minimize costs and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered expenses incurred by it within 10 days after its receipt of and payable to it by the same.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation Borrowers pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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)SECTION 3.5.
Appears in 1 contract
Increased Costs Capital Adequacy. (a1) If any Change in Law shall:
(i) shall impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (Aa Non-Funding Lender) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost (other than for Indemnified Taxes, Excluded Taxes or Other Taxes) to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Loan (or of maintaining its obligation to increase the cost to make any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Loan) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient Lender hereunder (whether of principal, interest or otherwise) ), then the Borrower will pay to such LenderLender on demand (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, the Issuing Bank or such other Recipient, as the case may be, upon demand a copy of which shall be furnished to Agent) such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(b2) If any Lender or the Issuing Bank shall have determined (other than a Non-Funding Lender) determines that any Change in Law regarding capital adequacy or liquidity requirements (other than in respect of Taxes) has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level materially below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company company, as applicable, could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company company, as applicable, with respect to capital adequacy or liquidity) adequacy), then from time to time the Borrower shall will pay to such Lender or on demand (which demand shall be accompanied by a statement setting forth the Issuing Bankbasis for such demand and a calculation of the amount thereof in reasonable detail, as the case may be, a copy of which shall be furnished to Agent) such additional amount or amounts as will compensate such Lender, the Issuing Bank ’s or such Lender’s or the Issuing Bank’s holding company company, as applicable, for any such reduction suffered.
(c3) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the Lender’s holding company, as applicablethe case may be, as specified in paragraph (aSections 3.3(a) or and (b) above ), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender on demand the amount shown as due on any such certificate delivered by it within 10 days after its receipt pursuant to Section 2.4 of the samethis Agreement.
(d4) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 3.3 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section 3.3 for any increased costs incurred or reductions suffered incurred more than nine months 180 days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine180-month day period referred to above shall be extended to include the period of retroactive effect thereof.
(5) Each Lender shall 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 Xxxxxx's sole judgment, otherwise disadvantageous to such Lender) to mitigate or avoid, (i) any obligation by Borrower to pay any amount pursuant to 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 exist, such Lender shall promptly so notify Borrower and Agent).
Appears in 1 contract
Samples: Loan and Security Agreement (Katapult Holdings, Inc.)
Increased Costs Capital Adequacy. (a) 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 account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO RateLIBOR);
(ii) subject the Administrative Agent or any Recipient Lender to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income or Other Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of CreditLender; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Loan (or of maintaining its obligation to increase the cost to make any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Loan) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder Lender (whether of principal, interest or otherwise) ), then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Lender, to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) ), then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered. Notwithstanding any other provision herein, no Lender shall demand compensation pursuant to this Section 2.16(b) as a result of a Change in Law resulting from Basel III or the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act if it shall not at the time be the general policy or practice of such Lender to demand such compensation from similarly situated borrowers (to the extent that, with respect to such Change in Law, such Lender has the right to do so under its credit facilities with similarly situated borrowers).
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the its holding company, as applicable, as specified in paragraph (a) or (b) above of this Section 2.16 shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 days [REDACTED – Time Period] after its receipt of the samethereof.
(d) Promptly after any Lender has determined that it will make a request for increased compensation pursuant to this Section 2.16, such Lender shall notify the Borrower. Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 2.16 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section 2.16 for any increased costs incurred or reductions suffered incurred more than nine months [REDACTED – Time Period] prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except thattherefor; provided, further, that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month [REDACTED – Time Period] period referred to above shall be extended to include the period of retroactive effect thereof).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Concordia Healthcare Corp.)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) shall impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (Aa Non-Funding Lender) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost (other than for Indemnified Taxes, Excluded Taxes or Other Taxes) to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Loan (or of maintaining its obligation to increase the cost to make any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Loan) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient Lender hereunder (whether of principal, interest or otherwise) ), then the Borrower will pay to such LenderLender on demand (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, the Issuing Bank or such other Recipient, as the case may be, upon demand a copy of which shall be furnished to Agent) such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined (other than a Non-Funding Lender) determines that any Change in Law regarding capital adequacy or liquidity requirements (other than in respect of Taxes) has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level materially below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company company, as applicable, could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company company, as applicable, with respect to capital adequacy or liquidity) adequacy), then from time to time the Borrower shall will pay to such Lender or on demand (which demand shall be accompanied by a statement setting forth the Issuing Bankbasis for such demand and a calculation of the amount thereof in reasonable detail, as the case may be, a copy of which shall be furnished to Agent) such additional amount or amounts as will compensate such Lender, the Issuing Bank ’s or such Lender’s or the Issuing Bank’s holding company company, as applicable, for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the Lender’s holding company, as applicablethe case may be, as specified in paragraph (aSections 3.3(a) or and (b) above ), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender on demand the amount shown as due on any such certificate delivered by it within 10 days after its receipt pursuant to Section 2.4 of the samethis Agreement.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 3.3 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section 3.3 for any increased costs incurred or reductions suffered incurred more than nine months 180 days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine180-month day period referred to above shall be extended to include the period of retroactive effect thereof.
(e) Each Lender shall 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 obligation by Borrower to pay any amount pursuant to 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 exist, such Lender shall promptly so notify Borrower and Agent).
Appears in 1 contract
Samples: Loan and Security Agreement (FinServ Acquisition Corp.)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, deposit or similar requirement (including any compulsory loanloan requirement, insurance charge or similar requirement other assessment) against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable theretoLender; or
(iiiii) impose on any Lender or the Issuing Bank or the London interbank market Relevant Interbank Market any other condition, cost or expense (other than Taxesbut excluding any Excluded Taxes and any Indemnified WHT, which shall be addressed by the provisions of Section 2.19) affecting this Agreement or the Term Loans made maintained by such Lender or any Letter of Credit or participation in any Letter of CreditLender; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Term Loan (or of maintaining its obligation to increase the cost to make any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Term Loan) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient Lender hereunder (whether of principal, interest or otherwise), then, following delivery of the notice contemplated by paragraph (c) then of this Section, the Borrower will shall pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Term Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law other than due to Excluded Taxes or Indemnified WHT, which shall be addressed by the provisions of Section 2.19 (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) adequacy), then from time to time time, following delivery of a notice contemplated by paragraph (c) of this Section, the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate notice of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph (a) or (b) above of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it notice within 10 ten (10) days after its receipt thereof. Upon request by the Borrower, such Lender shall, as soon as reasonably practicable, provide a copy of the samecalculations setting forth how the amount set forth in such notice was determined, which shall be for informational purposes only and shall not be deemed to affect the rights of any Lender pursuant to the provisions of this Section.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section for any increased costs incurred or reductions suffered incurred more than nine months 225 days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except that, therefor; provided further that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine225-month day period referred to above shall be extended to include the period of retroactive effect thereof).
Appears in 1 contract
Samples: Credit Agreement (Home Inns & Hotels Management Inc.)
Increased Costs Capital Adequacy. (a) If The Borrowers shall pay to each Lender from time to time on demand such amounts as such Lender may determine to be reasonably necessary to compensate it or its holding company for any costs which such Lender determines are attributable to its making or maintaining Loans, issuing Letters of Credit, or maintaining Commitments hereunder, or any reduction in any amount receivable by such Lender hereunder in respect of any such Loans, Letters of Credit or Commitments, resulting from any Regulatory Change in Law shall:
which: (i) imposechanges the basis of taxation of any amounts payable to such Lender under this Agreement in respect of any of such Loans, modify Letters of Credit or deem applicable Commitments (other than taxes imposed on the overall net income or franchise taxes of such Lender); or (ii) imposes or modifies any reserve, special deposit, compulsory loandeposit insurance or assessment, insurance charge minimum capital, capital ratio or similar requirement against relating to any extensions of credit or other assets of, or any deposits with or for the account of or credit extended by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other conditionof, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter holding company of Credit such Lender (including a request or participation requirement which affects the manner in any Letter of Credit; and which such Lender or the result holding company thereof allocates capital resources to commitments, including the Commitments). Each affected Lender will notify the Borrowers’ Representative of any event occurring after the date of the foregoing shall be this Agreement which will entitle such Lender to increase the cost compensation pursuant to this subsection (a) as promptly as practicable after it obtains knowledge thereof and determines to request such Lender, the Issuing Bank or such other Recipient of making or maintaining any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction sufferedcompensation.
(b) If any Lender or the Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or would have Without limiting the effect of reducing the rate foregoing provisions of return on this Section 2.5 (but without duplication), the Borrowers shall pay to each Lender from time to time upon demand by such Lender’s Lender such amounts as such Lender may determine to be reasonably necessary to compensate such Lender for any costs which it determines are attributable to the maintenance by it or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s its holding company, if anypursuant to any law or regulation of any jurisdiction or any interpretation, as a consequence directive or request (whether or not having the force of law) of any court or governmental or monetary authority, in effect after the date of this Agreement or the Loans made or participations Agreement, of capital in respect of its Loans, Letters of Credit purchased by or Commitments (such compensation to include an amount equal to any reduction in return on assets or equity of such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto its holding company to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company it could have achieved but for such Change in Law law, regulation, interpretation, directive or request). Each Lender will notify the Borrowers’ Representative if it is entitled to compensation pursuant to this subsection (taking into consideration b) as promptly as practicable after it determines to request such Lender’s or the Issuing Bank’s policies and the policies compensation.
(c) Each notice delivered by a Lender pursuant to this Section 2.5 shall contain a statement of such Lender’s or the Issuing Bank’s holding company with respect Lender as to capital adequacy or liquidity) then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, any such additional amount or amounts as will compensate such Lender(including calculations thereof in reasonable detail) which shall, in the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate absence of a Lender, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt be presumed correct of the samematters stated therein and be binding upon the Borrowers. In determining such amount, each affected Lender may use any method of averaging and attribution that it in good faith shall deem applicable.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate)) or any Letter of Credit Issuer;
(ii) subject any Recipient Lender or any Letter of Credit Issuer to any Taxes (other than (A) Indemnified TaxesTax of any kind whatsoever with respect to this Agreement, (B) Taxes described in clauses (b) through (d) any Letter of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitmentsCredit or any Eurodollar Loan made by it, or other obligationschange the basis of taxation of any payments to such Lender or such Letter of Credit Issuer in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 2.17 and the imposition of, or its depositsany change to, reserves, other liabilities the rate of any Excluded Tax payable by such Lender or capital attributable theretosuch Letter of Credit Issuer); or
(iii) impose on any Lender or the Issuing Bank any Letter of Credit Issuer or the London interbank market any other condition, cost or expense (other than Taxes) condition affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of Credit or participation in any Letter of Credittherein; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Eurodollar Loan (or of maintaining its obligation to make Eurodollar Loans) or to increase the cost to any Lender, the Issuing Bank such Lender or such other Recipient Letter of Credit Issuer of participating in, issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the any amount of any sum received or receivable by such Lender, the Issuing Bank Lender or such other Recipient Letter of Credit Issuer hereunder (whether of principal, interest or otherwise) ), then the Borrower will Borrowers shall pay to such Lender, the Issuing Bank Lender or such other RecipientLetter of Credit Issuer, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, it for such additional costs cost incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined any Letter of Credit Issuer determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Banksuch Letter of Credit Issuer’s capital or on the capital of such Lender’s or the Issuing Banksuch Letter of Credit Issuer’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit purchased by held by, such Lender pursuant hereto Lender, or the Letters of Credit issued by the Issuing Bank pursuant hereto such Letter of Credit Issuer, to a level below that which such Lender or the Issuing Bank such Letter of Credit Issuer or such Lender’s or the Issuing Banksuch Letter of Credit Issuer’s holding company reasonably could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Banksuch Letter of Credit Issuer’s policies and the policies of such Lender’s or the Issuing Banksuch Letter of Credit Issuer’s holding company with respect to capital adequacy or liquidity) adequacy), then from time to time following receipt of the Borrower certificate referred to in subsection (c) of this Section, the Borrowers shall pay to such Lender or the Issuing Banksuch Letter of Credit Issuer, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank it or such Lender’s or the Issuing Bank’s its holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank Lender or such other Recipient a Letter of Credit Issuer setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank it or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph subsection (a) or (b) above of this Section shall be delivered to the Borrower Agent and shall be conclusive absent manifest errorrebuttably presumed to be correct. Each such certificate shall contain a representation and warranty on the part of such Lender or Letter of Credit Issuer to the effect that such Lender or Letter of Credit Issuer has complied with its obligations pursuant to Section 2.21 hereof in an effort to eliminate or reduce such amount. The Borrower Borrowers shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the samethereof.
(d) Failure or delay on the part by any Lender or Letter of any Lender, the Issuing Bank or other such Recipient Credit Issuer to demand compensation pursuant to this Section 2.14 shall will not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s its right to demand such compensation; provided that the Borrower shall Borrowers will not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section for any increased costs cost or reduction incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, one year before it notifies the Borrower Agent of the Change in Law giving rise to such increased costs cost or reductions, reduction and of such Lender’s, the Issuing Bank’s or other such Recipient’s its intention to claim compensation therefor (except thattherefor. However, if the Change in Law giving rise to such increased costs cost or reductions reduction is retroactive, then the nine-month one year period referred to above shall will be extended to include the period of retroactive effect thereof.
(e) Within four (4) months following the date such certificate is furnished claiming compensation by any such Lender (an “Affected Lender”, which term shall also include a Lender making a demand under Section 2.17), the Borrowers may replace the Affected Lender pursuant to the provisions of Section 9.15.
Appears in 1 contract
Samples: Credit Agreement (James River Group Holdings, Ltd.)
Increased Costs Capital Adequacy. (a) If the Issuing Bank or any Change Lender determines that due to either (x) the introduction of any Requirement of Law, including any Capital Adequacy Regulation, or any change in any Requirement of Law shallor in the interpretation thereof (including those relating to reserves, special deposits, the basis of taxation, capital adequacy or Eurocurrency Liabilities or any other form of banking or monetary requirements or controls) or (y) compliance therewith by the Issuing Bank or any Lender:
(i) imposethe cost to the Issuing Bank or such Lender of maintaining its Commitment or maintaining the Letter of Credit or maintaining the Standby L/Cs or making or maintaining its Loans or its participation in the Letter of Credit Facility or Standby L/C Facility is increased;
(ii) the Issuing Bank or such Lender incurs a cost or suffers a reduction in yield (including the cost of, modify or deem applicable any reduction in yield arising from, complying with such taxation, reserve, special deposit, compulsory loancash ratio, insurance charge liquidity, capital adequacy, Eurocurrency Liabilities or similar other requirement against assets ofor control as aforesaid) as a result of its having agreed to issue the Letter of Credit, deposits with or for the account of or credit extended by any Lender or the Issuing Bank (except any such reserve requirement which is reflected to participate in the Adjusted LIBO Rate);
(ii) subject any Recipient Letter of Credit Facility, to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described issue the Standby L/Cs or to participate in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on Standby L/C Facility or to give effect to its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable theretoobligations contemplated hereunder; or
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such Lender makes any additional payment or suffers a reduction in yield or forgoes any interest or other Recipient of making return on or maintaining any Loan or to increase the cost calculated by reference to any Lenderamount received or receivable by it hereunder or calculated by reference to the amount of its Loans, its issuance of the Letter of Credit or its participation in the Letter of Credit Facility, its issuance of Standby L/Cs, or participation in the Standby L/C Facility or its Commitment; then and in each such case:
(A) the Issuing Bank or such Lender (an "Affected Lender") shall notify the Issuer through the Administrative Agent in writing of such event promptly upon its becoming aware of the event entitling it to make a claim; provided, however, that the failure to give such notice shall not affect the rights of any Affected Lender under this Section 5.10(a); and
(B) upon demand from time to time by such Affected Lender through the Administrative Agent, the Issuer shall pay to the Administrative Agent for the account of such Affected Lender such amount as shall compensate such Affected Lender for such increased cost, reduction in yield, or shortfall in return, additional payment or forgone interest or other Recipient return. The certificate of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce such Affected Lender specifying the amount of such compensation shall be conclusive except in the case of manifest error.
(b) The Issuing Bank and each Lender agree that, upon the occurrence of any sum received event giving rise to the operation of paragraph (a) above as to it, it will, if so requested by the Issuer, use its commercially reasonable efforts to avoid or receivable by minimize the consequences of such Lenderevent; provided, however, that such action shall not, in the judgment of the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount be illegal or amounts as will compensate such Lender, economically or otherwise disadvantageous to it.
(c) It is understood that paragraph (a) above does not apply to the introduction of or any increase in the income or franchise taxes of the Issuing Bank or any Lender levied by any jurisdiction (or political subdivision or taxing authority thereof) under the laws of which the Issuing Bank or any Lender is organized or in which a Lending Office or the principal place of business of the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction sufferedLender is located.
(b) If any Lender or the Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).
Appears in 1 contract
Samples: Reimbursement and Credit Agreement (Cemex Sa De Cv)
Increased Costs Capital Adequacy. (a) If after the date of this Agreement any Change change in Law shall:
any applicable Governmental Requirement (iincluding, without limitation, the adoption of any new Governmental Requirement) or in the interpretation or administration thereof by any central bank or comparable agency or any other Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets Property of, deposits with or for the account of or credit extended by any Lender or the Issuing Bank (except any such reserve requirement which that is reflected in the Adjusted LIBO RateEurodollar Rate Reserve Percentage);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) shall impose on any such Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) condition affecting this Agreement or Eurodollar Rate Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; Lender, and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Eurodollar Rate Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient Lender hereunder (whether of principal, interest interest, fees or otherwise) by an amount reasonably determined by such Lender to be material, then the Borrower will pay to such Lender, the Issuing Bank or following receipt of a notice from such other RecipientLender to such effect, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that (i) the adoption after the date of this Agreement of any Change Governmental Requirement, guideline or directive regarding capital adequacy, (ii) any change after the date of this Agreement in Law any such Governmental Requirement, guideline or directive or in the interpretation or administration thereof after the date of this Agreement by any central bank or comparable agency or any other Governmental Authority charged with the interpretation or administration thereof or (iii) compliance by any Lender (or any lending office of such Lender) or any Lender's holding company with any request or directive regarding capital adequacy issued after the date of this Agreement under any Governmental Requirement or liquidity requirements guideline (whether or not having the force of law) of any Governmental Authority has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s 's capital or on the capital of such Lender’s or the Issuing Bank’s 's holding company, if any, as a consequence of this Agreement Agreement, the Commitment of such Lender, if any, or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s 's holding company could have achieved but for such Change in Law applicability, adoption, change or compliance (taking into consideration such Lender’s or the Issuing Bank’s 's policies and the policies of such Lender’s or the Issuing Bank’s 's holding company with respect to capital adequacy or liquidityadequacy) by an amount reasonably determined by such Lender to be material, then from time to time the Borrower shall will pay to such Lender, following receipt of a notice from such Lender or the Issuing Bank, as the case may beto such effect, such additional amount or amounts as will shall compensate such Lender, the Issuing Bank Lender or such Lender’s or the Issuing Bank’s 's holding company for any such reduction suffered.
(c) A certificate of Any Lender requiring payment under this Section 3.05 shall deliver to the Borrower a Lender, the Issuing Bank or such other Recipient statement reasonably setting forth the amount or amounts necessary to compensate such Lenderand manner of determination thereof, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above which statement shall be delivered to the Borrower and shall be conclusive conclusive, absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on Each Lender will promptly notify the part Borrower of any Lender, event occurring after the Issuing Bank or other date of this Agreement of which it has knowledge which will entitle such Recipient Lender to demand compensation pursuant to this Section 2.14 shall not constitute 3.05 and will designate a waiver different Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the judgment of such Lender’s, the Issuing Bank’s or such other Recipient’s right be otherwise disadvantageous to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) shall impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (Aa Non-Funding Lender) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost (other than for Indemnified Taxes, Excluded Taxes or Other Taxes) to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Loan (or of maintaining its obligation to increase the cost to make any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Loan) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient Lender hereunder (whether of principal, interest or otherwise) ), then the Borrower will pay to such LenderLender on demand (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, the Issuing Bank or such other Recipient, as the case may be, upon demand a copy of which shall be furnished to Agent) such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(b) . If any Lender or the Issuing Bank shall have determined (other than a Non-Funding Lender) determines that any Change in Law regarding capital adequacy or liquidity requirements (other than in respect of Taxes) has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level materially below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company company, as applicable, could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company company, as applicable, with respect to capital adequacy or liquidity) adequacy), then from time to time the Borrower shall will pay to such Lender or on demand (which demand shall be accompanied by a statement setting forth the Issuing Bankbasis for such demand and a calculation of the amount thereof in reasonable detail, as the case may be, a copy of which shall be furnished to Agent) such additional amount or amounts as will compensate such Lender, the Issuing Bank ’s or such Lender’s or the Issuing Bank’s holding company company, as applicable, for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).
Appears in 1 contract
Samples: Loan and Security Agreement (Katapult Holdings, Inc.)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) shall impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by any by, Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining main-taining any Loan (or of maintaining its obligation to increase the cost to make any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Loan) or to reduce the amount of any sum received or receivable receiv-able by such Lender, the Issuing Bank or such other Recipient Lender hereunder (whether of principal, interest or otherwise) ), then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s 's capital or on the capital of such Lender’s or the Issuing Bank’s 's holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s 's holding company company, as applicable, could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s 's policies and the policies of such Lender’s or the Issuing Bank’s 's holding company company, as applicable, with respect to capital adequacy or liquidity) adequacy), then from time to time the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or Lender's holding company, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company as applicable, for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender or Lender, the Issuing Bank or such other Recipient or the 's holding company, as applicablethe case may be, as specified in paragraph (aSections 3.21(a) or and (b) above ), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 ten (10) days after its receipt of the same.
thereof. (br) (d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 3.21 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s 's right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section 3.21 for any increased costs incurred or reductions suffered incurred more than nine months one hundred eighty (180) days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’s 's intention to claim compensation therefor (except therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine180-month day period referred to above shall be extended to include the period of retroactive effect thereof).
Appears in 1 contract
Samples: Inventory Loan and Security Agreement (Silverleaf Resorts Inc)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate)) or any Letter of Credit Issuer;
(ii) subject any Recipient Lender or any Letter of Credit Issuer to any Taxes (other than (A) Indemnified TaxesTax of any kind whatsoever with respect to this Agreement, (B) Taxes described in clauses (b) through (d) any Letter of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitmentsCredit or any Eurodollar Loan made by it, or other obligationschange the basis of taxation of any payments to such Lender or such Letter 42 of Credit Issuer in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 2.17 and the imposition of, or its depositsany change to, reserves, other liabilities the rate of any Excluded Tax payable by such Lender or capital attributable theretosuch Letter of Credit Issuer); or
(iii) impose on any Lender or the Issuing Bank any Letter of Credit Issuer or the London interbank market any other condition, cost or expense (other than Taxes) condition affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of Credit or participation in any Letter of Credittherein; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Eurodollar Loan (or of maintaining its obligation to make Eurodollar Loans) or to increase the cost to any Lender, the Issuing Bank such Lender or such other Recipient Letter of Credit Issuer of participating in, issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the any amount of any sum received or receivable by such Lender, the Issuing Bank Lender or such other Recipient Letter of Credit Issuer hereunder (whether of principal, interest or otherwise) ), then the Borrower will shall pay to such Lender, the Issuing Bank Lender or such other RecipientLetter of Credit Issuer, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, it for such additional costs cost incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined any Letter of Credit Issuer determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s 's or the Issuing Bank’s such Letter of Credit Issuer's capital or on the capital of such Lender’s 's or the Issuing Bank’s such Letter of Credit Issuer's holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit purchased by held by, such Lender pursuant hereto Lender, or the Letters of Credit issued by the Issuing Bank pursuant hereto such Letter of Credit Issuer, to a level below that which such Lender or the Issuing Bank such Letter of Credit Issuer or such Lender’s 's or the Issuing Bank’s such Letter of Credit Issuer's holding company reasonably could have achieved but for such Change in Law (taking into consideration such Lender’s 's or the Issuing Bank’s such Letter of Credit Issuer's policies and the policies of such Lender’s 's or the Issuing Bank’s such Letter of Credit Issuer's holding company with respect to capital adequacy or liquidity) adequacy), then from time to time following receipt of the certificate referred to in subsection (c) of this Section, the Borrower shall pay to such Lender or the Issuing Banksuch Letter of Credit Issuer, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank it or such Lender’s or the Issuing Bank’s its holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank Lender or such other Recipient a Letter of Credit Issuer setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank it or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph subsection (a) or (b) above of this Section shall be delivered to the Borrower and shall be conclusive absent manifest errorrebuttably presumed to be correct. Each such certificate shall contain a representation and warranty on the part of such Lender or Letter of Credit Issuer to the effect that such Lender or Letter of Credit Issuer has complied with its obligations pursuant to Section 2.21 hereof in an effort to eliminate or reduce such amount. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the samethereof.
(d) Failure or delay on the part by any Lender or Letter of any Lender, the Issuing Bank or other such Recipient Credit Issuer to demand compensation pursuant to this Section 2.14 shall will not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s its right to demand such compensation; provided that the Borrower shall will not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section for any increased costs cost or reduction incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, 180 days before it notifies the Borrower of the Change in Law giving rise to such increased costs cost or reductions, reduction and of such Lender’s, the Issuing Bank’s or other such Recipient’s its intention to claim compensation therefor (except thattherefor. However, if the Change in Law giving rise to such increased costs cost or reductions reduction is retroactive, then the nine180-month day period referred to above shall will be extended to include the period of retroactive effect thereof.
(e) Within four (4) months following the date such certificate is furnished claiming compensation by any such Lender (an “Affected Lender”, which term shall also include a Lender making a demand under Section 2.17), the Borrower may replace the Affected Lender pursuant to the provisions of Section 9.15.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If after the date of this Agreement any Change change in Law shall:
any applicable Governmental Requirement (iincluding, without limitation, the adoption of any new Governmental Requirement) or in the interpretation or administration thereof by any central bank or comparable agency or any other Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets Property of, deposits with or for the account of or credit extended by any Lender or the Issuing Bank any Issuer (except any such reserve requirement which that is reflected in the Adjusted LIBO RateEurodollar Rate Reserve Percentage);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) shall impose on any such Lender or the Issuing Bank such Issuer or the London interbank market any other condition, cost or expense (other than Taxes) condition affecting this Agreement or Eurodollar Rate Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; therein, and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank Lender or such other Recipient Issuer of making or maintaining any Eurodollar Rate Loan or to increase the cost to any Lender, the Issuing Bank such Lender or such other Recipient Issuer of issuing or maintaining any Letter of Credit Credit, paying or funding any draw request thereunder or purchasing or maintaining a participation in any Letter of Credit therein, or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank Lender hereunder or such other Recipient Issuer hereunder or under any Letter of Credit Reimbursement Agreement (whether of principal, interest interest, fees or otherwise) by an amount reasonably determined by such Lender or such Issuer to be material, then the Borrower will pay to such Lender, the Issuing Bank Lender or such other RecipientIssuer, as the case may be, upon demand following receipt of a notice from such Lender or such Issuer, as the case may be, to such effect, such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such other RecipientIssuer, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank any Issuer shall have determined that (i) the adoption after the date of this Agreement of any Change Governmental Requirement, guideline or directive regarding capital adequacy, (ii) any change after the date of this Agreement in Law any such Governmental Requirement, guideline or directive or in the interpretation or administration thereof after the date of this Agreement by any central bank or comparable agency or any other Governmental Authority charged with the interpretation or administration thereof or (iii) compliance by any Lender (or any lending office of such Lender) or any Issuer or any Lender’s or any Issuer’s holding company with any request or directive regarding capital adequacy issued after the date of this Agreement under any Governmental Requirement or liquidity requirements guideline (whether or not having the force of law) of any Governmental Authority has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Banksuch Issuer’s capital or on the capital of such Lender’s or the Issuing Banksuch Issuer’s holding company, if any, as a consequence of this Agreement Agreement, the Commitment of such Lender or the Loans made by such Lender or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank such Issuer pursuant hereto to a level below that which such Lender or the Issuing Bank such Issuer or such Lender’s or the Issuing Banksuch Issuer’s holding company could have achieved but for such Change in Law applicability, adoption, change or compliance (taking into consideration such Lender’s or the Issuing Banksuch Issuer’s policies and the policies of such Lender’s or the Issuing Banksuch Issuer’s holding company with respect to capital adequacy adequacy) by an amount reasonably determined by such Lender or liquidity) such Issuer to be material, then from time to time the Borrower shall will pay to such Lender or the Issuing Banksuch Issuer, as the case may be, following receipt of a notice from such Lender or such Issuer, as the case may be, to such effect, such additional amount or amounts as will shall compensate such Lender, the Issuing Bank Lender or such Issuer or such Lender’s or the Issuing Banksuch Issuer’s holding company for any such reduction suffered.
(c) A certificate of Any Issuer or any Lender requiring payment under this Section 3.05 shall deliver to the Borrower a Lender, the Issuing Bank or such other Recipient statement reasonably setting forth the amount or amounts necessary to compensate such Lenderand manner of determination thereof, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above which statement shall be delivered to the Borrower and shall be conclusive conclusive, absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on Each Lender will promptly notify the part Borrower of any Lender, event occurring after the Issuing Bank or other date of this Agreement of which it has knowledge which will entitle such Recipient Lender to demand compensation pursuant to this Section 2.14 shall not constitute 3.05 and will designate a waiver different Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the judgment of such Lender’s, the Issuing Bank’s or such other Recipient’s right be otherwise disadvantageous to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).
Appears in 1 contract
Increased Costs Capital Adequacy. (a) 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 account of of, or credit extended by or participated in by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);Term Lender,
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (dde) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Term Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Term Loans made by such Lender or any Letter of Credit or participation in any Letter of CreditTerm Lender; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank Term Lender or such other Recipient of making or maintaining any Term Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank Term Lender or such other Recipient hereunder (whether of principal, interest or otherwiseany other amount) then then, upon request of such Term Lender or other Recipient, the Borrower will pay to such Lender, the Issuing Bank Term Lender or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank Term Lender or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Term Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient Term Lender or the holding company, as applicablethe case may be, as specified in paragraph clause (a) or (b) above shall be of this Section and delivered to the Borrower and Borrower, shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Term Lender the amount shown as due on any such certificate delivered by it within 10 ten (10) days after its receipt of the samethereof.
(dc) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Term Lender to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Term Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above Term Lender pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Term Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Term Lender’s, the Issuing Bank’s or other such Recipient’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).
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) 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 account of of, or credit extended by or participated in by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Eurodollar Rate);
(ii) . subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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 Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of CreditLender; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank Lender or such other Recipient of making making, converting to, continuing or maintaining any Loan Loan, or to increase the cost to any Lender, the Issuing Bank such Lender or such other Recipient of participating in, issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit such Loan, or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank Lender or such other Recipient hereunder (whether of principal, interest or otherwiseany other amount) then then, upon the request of such Lender or other Recipient, the Borrower will promptly pay to such Lender, the Issuing Bank Lender or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law affecting such Lender or any lending office of such Lender or such Lender’s holding company, if any, regarding capital adequacy or liquidity requirements requirements, has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement Agreement, the Commitments of such Lender or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) adequacy), then from time to time after submission by such Lender to the Borrower shall (with a copy to the Disbursing Agent) of a written request therefor the Borrower will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such Lender’s or the Issuing Bank’s holding company for any such reduction sufferedsuffered on an after-tax basis.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph (aSection 2.15(a) or (bSection 2.15(b) above shall be and delivered to the Borrower and (with a copy to the Disbursing Agent), shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the samethereof.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 2.15 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section 2.15 for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).
(e) The obligations of the Borrower pursuant to this Section 2.15 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) shall impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Loan (or of maintaining its obligation to increase the cost to make any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Loan) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient Lender hereunder (whether of principal, interest or otherwise) ), then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company company, as applicable, could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company company, as applicable, with respect to capital adequacy or liquidity) adequacy), then from time to time the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank ’s or such Lender’s or the Issuing Bank’s holding company company, as applicable, for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the Lender’s holding company, as applicablethe case may be, as specified in paragraph (aSections 3.6(a) or and (b) above ), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 ten (10) days after its receipt of the samethereof.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 3.6 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section 3.6 for any increased costs incurred or reductions suffered incurred more than nine months 180 days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactiveretroactive or if Lender is prohibited under Applicable Law from giving such notice, then the nine180-month day period referred to above shall be extended to include the period of retroactive effect thereof or any period where such notice could not lawfully be given.
(e) In the event of (a) the payment of any principal of any Advance other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), or (b) the failure to borrow, continue or prepay any Advance on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under the terms of this Agreement and is revoked in accordance therewith), then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event. Such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Advance had such event not occurred, at the interest rate that would have been applicable to such Advance, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow or continue, for the period that would have been the Interest Period for such Advance), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a comparable amount and period from other banks in the Eurodollar market. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section 3.6(e) shall be delivered to Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within ten (10) days after receipt thereof).
Appears in 1 contract
Samples: Loan and Security Agreement (Harvest Capital Credit Corp)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) impose on any Lender or the London interbank market any other condition affecting this Agreement or Eurodollar Rate Loans made by such Lender; or
(iii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense thereto (other than (A) Indemnified Taxes and (B) Other Connection Taxes on gross or net income, profits or revenue (including value-added or similar Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit)); and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank Lender or such other Recipient of making or maintaining any Eurodollar Rate Loan (or of maintaining its obligation to increase the cost to make any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Loan) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) ), then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy requirements or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) ), then from time to time the Borrower shall will pay to such Lender or the Issuing BankLender, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph (a) or (b) above of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, as the Issuing Bank or such other Recipient case may be, the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the samethereof.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section for any increased costs incurred or reductions suffered incurred more than nine months 180 days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine180-month day period referred to above shall be extended to include the period of retroactive effect thereof).
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Douglas Dynamics, Inc)
Increased Costs Capital Adequacy. (ai) If any Change in Law shall:
shall (iA) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(iiB) subject any Recipient to any Taxes (other than (Ax) Indemnified Taxes, Taxes or (By) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes Taxes, and (Cz) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining the Term Loans (or of maintaining its obligation to make any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Term Loans) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient Lender hereunder (whether of principal, interest or otherwise) then ), the Borrower will shall pay the Administrative Agent for distribution to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(bii) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Term Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company company, as applicable, could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company company, as applicable, with respect to capital adequacy or liquidity) adequacy), then from time to time time, the Borrower shall will pay the Administrative Agent for distribution to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank ’s or such Lender’s or the Issuing BankLxxxxx’s holding company company, as applicable, for any such reduction suffered.
(ciii) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the Lender’s holding company, as applicablethe case may be, as specified in paragraph clauses (ai) or and (bii) above above, shall be delivered to the Borrower (with a copy to the Administrative Agent) and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for distribution to such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 ten (10) days after its receipt of the same.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensationthereof; provided that with respect to any notice given to the Borrower under this Section 3.2 the Borrower shall not be required under any obligation to compensate pay any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant amount with respect to this Section for any increased costs incurred or reductions suffered more than nine months period prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise is nine (9) months prior to such increased costs or reductionsnotice; provided, and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except thatfurther, if the Change in Law giving rise to such increased costs or reductions Increased Costs is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof). A Lender will, within a reasonable period of time after the officer of such Lender having primary responsibility for administering the Term Loan becomes aware of the occurrence of an event or the existence of a condition that would entitle such Lender to receive payments under this Section 3.2, to avoid or reduce any increased or additional costs or any other amounts payable by the Borrowers under this Section 3.2, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (i) make, issue, fund or maintain its portion of the Term Loan through another office of such Lender, or (ii) take such other measures as such Lender may deem reasonable, if as a result thereof the circumstances which would cause the additional amounts which would otherwise be required to be paid to such Lender pursuant to this Section 3.2 to be materially reduced and if, as determined by such Lender in its reasonable discretion, the making, issuing, funding or maintaining of its portion of the Term Loan through such other office or in accordance with such other measures, as the case may be, would not otherwise adversely affect the interests of such Lender.
(iv) Failure or delay on the part of any Lender to demand compensation pursuant to this Section 3.2(a) shall not constitute a waiver of such Lender’s right to demand such compensation; provided, however, the Borrower shall not be required to compensate any Lender pursuant to this Section 3.2 for any increased costs or reductions or other amounts suffered more than one hundred eighty (180) days prior to the date that such Lender notifies the Borrower of the event or the existence of a condition that would entitle such Lender to receive payments under this Section 3.2.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iiiii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) condition affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of Credit or participation in any Letter of CreditLender; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Eurodollar Loan (or of maintaining its obligation to make Eurodollar Loans) or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Lender or to reduce the any amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient Lender hereunder (whether of principal, interest or otherwise) ), then the Borrower will shall pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, it for such additional costs cost incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Lender, to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) adequacy), then from time to time following receipt of the certificate referred to in subsection (c) of this Section, the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank it or such Lender’s or the Issuing Bank’s its holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank it or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph subsection (a) or (b) above of this Section shall be delivered to the Borrower and shall be conclusive absent manifest errorrebuttably presumed to be correct. Each such certificate shall contain a representation and warranty on the part of the Lender to the effect that such Lender has complied with its obligations pursuant to Section 2.19 hereof in an effort to eliminate or reduce such amount. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the samethereof.
(d) Failure or delay on the part of by any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 shall will not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s its right to demand such compensation; provided that the Borrower shall will not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section for any increased costs cost or reduction incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, 180 days before it notifies the Borrower of the Change in Law giving rise to such increased costs cost or reductions, reduction and of such Lender’s, the Issuing Bank’s or other such Recipient’s its intention to claim compensation therefor (except thattherefor. However, if the Change in Law giving rise to such increased costs cost or reductions reduction is retroactive, then the nine180-month day period referred to above shall will be extended to include the period of retroactive effect thereof.
(e) Within four (4) months following the date such certificate is furnished claiming compensation by any such Lender (an “Affected Lender”, which term shall also include a Lender making a demand under Section 2.17), the Borrower may replace the Affected Lender pursuant to the provisions of Section 9.15.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If The Borrowers agree to pay to each Lender from time to time on demand such amounts as each Lender may determine to be reasonably necessary to compensate it for any costs which such Lender determines are attributable to its making or maintaining Loans hereunder, or any reduction in any amount receivable by Lender hereunder in respect of any such Loans, resulting from any Regulatory Change in Law shall:
which: (i) impose, modify changes the basis of taxation of any amounts payable to such Lender under this Agreement in respect of any of such Loans (other than taxes imposed on the overall net income or deem applicable franchise taxes of such Lender); or (ii) imposes or modifies any reserve, special deposit, compulsory loandeposit insurance or assessment, insurance charge minimum capital, capital ratio or similar requirement against relating to any extensions of credit or other assets of, or any deposits with or for the account of or credit extended by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other conditionof, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter holding company of Credit such Lender (including a request or participation requirement which affects the manner in any Letter of Credit; and which such Lender or the result holding company thereof allocates capital resources to commitments). Each such Lender will notify the Borrower Representative of any event occurring after the date of the foregoing shall be this Agreement which will entitle such Lender to increase the cost compensation pursuant to this Subsection (a) as promptly as practicable after it obtains knowledge thereof and determines to request such Lender, the Issuing Bank or such other Recipient of making or maintaining any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction sufferedcompensation.
(b) If any Lender or the Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or would have Without limiting the effect of reducing the rate foregoing provisions of return on this Section 3.5.2 (but without duplication), the Borrowers agree to pay to each Lender from time to time upon demand by such Lender’s Lender such amounts as each such Lender may determine to be reasonably necessary to compensate such Lender for any costs which it determines are attributable to the maintenance by it or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s its holding company, if anypursuant to any law or regulation of any jurisdiction or any interpretation, as a consequence directive or request (whether or not having the force of law) of any court or governmental or monetary authority, in effect after the date of this Agreement Agreement, of capital in respect of its Loans (such compensation to include an amount equal to any reduction in return on assets or the Loans made or participations in Letters equity of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto its holding company to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company it could have achieved but for such Change in Law (taking into consideration law, regulation, interpretation, directive or request). Each such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) then from time to time Lender will notify the Borrower shall pay Representative if it is entitled to compensation pursuant to this Subsection (b) as promptly as practicable after it determines to request such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction sufferedcompensation.
(c) A certificate Each Lender agrees that as promptly as is reasonably practical after it becomes aware of a Lenderany circumstances referred to in this Section 3.5.2 above which would result in any such increased costs, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary affected Lender shall use commercially reasonable efforts to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower minimize costs and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered expenses incurred by it within 10 days after its receipt of and payable to it by the same.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation Borrowers pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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)3.5.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate)) or any Letter of Credit Issuer;
(ii) subject any Recipient Lender or any Letter of Credit Issuer to any Taxes (other than (A) Indemnified TaxesTax of any kind whatsoever with respect to this Agreement, (B) Taxes described in clauses (b) through (d) any Letter of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitmentsCredit or any Eurodollar Loan made by it, or other obligationschange the basis of taxation of any payments to such Lender or such Letter of Credit Issuer in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 2.17 and the imposition of, or its depositsany change to, reserves, other liabilities the rate of any Excluded Tax payable by such Lender or capital attributable theretosuch Letter of Credit Issuer); or
(iii) impose on any Lender or the Issuing Bank any Letter of Credit Issuer or the London interbank market any other condition, cost or expense (other than Taxes) condition affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of Credit or participation in any Letter of Credittherein; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Eurodollar Loan (or of maintaining its obligation to make Eurodollar Loans) or to increase the cost to any Lender, the Issuing Bank such Lender or such other Recipient Letter of Credit Issuer of participating in, issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the any amount of any sum received or receivable by such Lender, the Issuing Bank Lender or such other Recipient Letter of Credit Issuer hereunder (whether of principal, interest or otherwise) ), then the Borrower will shall pay to such Lender, the Issuing Bank Lender or such other RecipientLetter of Credit Issuer, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, it for such additional costs cost incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined any Letter of Credit Issuer determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Banksuch Letter of Credit Issuer’s capital or on the capital of such Lender’s or the Issuing Banksuch Letter of Credit Issuer’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit purchased by held by, such Lender pursuant hereto Lender, or the Letters of Credit issued by the Issuing Bank pursuant hereto such Letter of Credit Issuer, to a level below that which such Lender or the Issuing Bank such Letter of Credit Issuer or such Lender’s or the Issuing Banksuch Letter of Credit Issuer’s holding company reasonably could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Banksuch Letter of Credit Issuer’s policies and the policies of such Lender’s or the Issuing Banksuch Letter of Credit Issuer’s holding company with respect to capital adequacy or liquidity) adequacy), then from time to time following receipt of the certificate referred to in subsection (c) of this Section, the Borrower shall pay to such Lender or the Issuing Banksuch Letter of Credit Issuer, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank it or such Lender’s or the Issuing Bank’s its holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank Lender or such other Recipient a Letter of Credit Issuer setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank it or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph subsection (a) or (b) above of this Section shall be delivered to the Borrower and shall be conclusive absent manifest errorrebuttably presumed to be correct. Each such certificate shall contain a representation and warranty on the part of such Lender or Letter of Credit Issuer to the effect that such Lender or Letter of Credit Issuer has complied with its obligations pursuant to Section 2.21 hereof in an effort to eliminate or reduce such amount. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the samethereof.
(d) Failure or delay on the part by any Lender or Letter of any Lender, the Issuing Bank or other such Recipient Credit Issuer to demand compensation pursuant to this Section 2.14 shall will not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s its right to demand such compensation; provided that the Borrower shall will not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section for any increased costs cost or reduction incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, 180 days before it notifies the Borrower of the Change in Law giving rise to such increased costs cost or reductions, reduction and of such Lender’s, the Issuing Bank’s or other such Recipient’s its intention to claim compensation therefor (except thattherefor. However, if the Change in Law giving rise to such increased costs cost or reductions reduction is retroactive, then the nine180-month day period referred to above shall will be extended to include the period of retroactive effect thereof.
(e) Within four (4) months following the date such certificate is furnished claiming compensation by any such Lender (an “Affected Lender”, which term shall also include a Lender making a demand under Section 2.17), the Borrower may replace the Affected Lender pursuant to the provisions of Section 9.15.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) 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 account of of, or credit extended by or participated in by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate)Lender;
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, Taxes and (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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 Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of CreditLender; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank Lender or such other Recipient of making making, converting to, continuing or maintaining any Loan or to increase the cost to any LenderLoan, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank Lender or such other Recipient hereunder (whether of principal, interest or otherwiseany other amount) then then, upon the request of such Lender or other Recipient, the Borrower will promptly pay to such Lender, the Issuing Bank Lender or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law affecting such Lender or any lending office of such Lender or such Lender’s holding company, if any, regarding capital adequacy or liquidity requirements requirements, has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement Agreement, the Commitments of such Lender or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Lender, to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing BankXxxxxx’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing BankXxxxxx’s holding company with respect to capital adequacy or liquidity) adequacy), then from time to time the Borrower shall will pay to such Lender or the Issuing BankLender, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph (aSection 2.18(a) or (bSection 2.18(b) above shall be and delivered to the Borrower and (with a copy to the Administrative Agent), shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the samethereof.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 2.18 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section 2.18 for any increased costs incurred or reductions suffered more than nine twelve months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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 ninetwelve-month period referred to above shall be extended to include the period of retroactive effect thereof).
(e) The obligations of the Borrower pursuant to this Section 2.18 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, liquidity or similar requirement (including any compulsory loanloan requirement, insurance charge or similar requirement other assessment) against assets of, deposits with or for the account of of, or credit extended by by, any Lender;
(ii) impose on any Lender or the Issuing Bank London interbank market any other condition, cost or expense (except any other than Taxes) affecting this Agreement or Advances made by such reserve requirement which is reflected in the Adjusted LIBO Rate);Lender or participation therein; or
(iiiii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank Lender or such other Recipient of making or maintaining any Loan or of maintaining its obligation to increase the cost to make any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Loan or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank Lender or such other Recipient hereunder (hereunder, whether of principal, interest or otherwise) , then the Borrower will pay to such Lender, the Issuing Bank Lender or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level Loan below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or and liquidity) ), then from time to time the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph (a) or (b) above of this Section, and a description of the cause and a calculation of the increased cost of funding to the Lender, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 days ten (10) Business Days after its receipt of the samethereof.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section for any increased costs incurred or reductions suffered incurred more than nine months 270 days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine270-month day period referred to above shall be extended to include the period of retroactive effect thereof).
(e) If any Lender requests compensation under this Section 3.3, or Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 13.8, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loan hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to this Section 3.3 or Section 13.8, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
Appears in 1 contract
Samples: Loan and Security Agreement (Enova International, Inc.)
Increased Costs Capital Adequacy. (a) If any Change in Law shallLaw:
(i) imposesubjects the Lender to any Taxes, modify or deem change the basis of taxation of payments to the Lender in respect of its Loans (excluding Taxes that are already covered by Section 2.12), or
(ii) imposes, modifies, or deems applicable any reserve, special deposit, compulsory loanassessment, insurance charge charge, special deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by any Lender or by, the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified TaxesLender, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market imposes any other conditioncondition the result of which is to increase the cost the Lender of making, cost funding or expense (other than Taxes) affecting this Agreement maintaining Loans, or reduces any amount receivable by the Lender in connection with the Loans, or requires the Lender to make any payment calculated by reference to the amount of Loans made or interest received by such it, by an amount deemed material by the Lender or any Letter in the exercise of Credit or participation in any Letter of Credit; its reasonable discretion, and the result of any of the foregoing shall be is to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Loan its Loans or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Commitments or to reduce the amount of any sum return received by the Lender in connection with such Loans or receivable by such LenderCommitments, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will shall pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred increased cost or reduction sufferedin amount received.
(b) If any the Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such the Lender’s or the Issuing Bank’s capital or on the capital of such the Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans a Loan made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Lender to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such the Lender’s or the Issuing Bank’s policies and the policies of such the Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) adequacy), then from time to time the Borrower shall will pay to such the Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such the Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate . For purposes of a Lenderthis Section, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) “Change in Law” includes (i) any change after the date of this Agreement in the Risk-Based Capital Guidelines (as defined below) or (ii) any adoption of or change in any other law, governmental or 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 that affects the amount of capital required or expected to be maintained by the Bank or any corporation controlling the Bank and (b) above shall be delivered to “Risk-Based Capital Guidelines” means (i) the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, risk-based capital guidelines in effect in the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay United States on the part date of this Agreement, including transition rules, and (ii) the corresponding capital regulations promulgated by regulatory authorities outside the United States including transition rules, and any Lender, the Issuing Bank or other amendments to such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months regulations adopted prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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)this Agreement.
Appears in 1 contract
Samples: Credit Agreement (NGA Holdco, LLC)
Increased Costs Capital Adequacy. (a) If Borrower shall pay directly to each Lender from time to time such amounts as such Lender may determine to be necessary to compensate such Lender for any increase in costs that such Lender determines are attributable to its making or maintaining of its Commitment or the loans evidenced by its Equipment Notes 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 Commitments, such loans or such arrangements (such increases in costs and reductions in amounts receivable being herein called “Additional Costs”), in either case applicable to the period commencing sixty (60) days prior to Lender’s notification thereof pursuant to Section 4.4(c) and resulting from any Regulatory Change in Law shallthat:
(i1) impose, modify or deem applicable imposes any tax that is the functional equivalent of any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of or credit extended by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and sort covered by clause (C2) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable theretobelow; or
(iii2) impose on imposes or modifies any Lender reserve, special deposit or the Issuing Bank similar requirements (including any Reserve Requirement) relating to any extensions of credit or the London interbank market other assets of, or any deposits with or other liabilities of, such Lender, or any such obligations; or
(3) imposes any other condition, cost or expense (other than Taxes) condition affecting this Agreement or Loans made by such Lender its Equipment Notes (or any Letter of Credit such extensions of credit or participation in liabilities) or any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient of making or maintaining any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction sufferedobligation.
(b) If any Lender or the Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or would have Without limiting the effect of reducing the foregoing provisions of this Section 4.4 (but without duplication), Borrower shall pay directly to each Lender from time to time on request such amounts as such Lender shall determine to be necessary to compensate such Lender (or, without duplication, the holding company of which such Lender is a subsidiary) for any increase in costs that are attributable to the maintenance by such Lender (or any lending office or such holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful so long as compliance therewith is standard banking practice in the relevant jurisdiction) of any court or governmental or monetary authority following (i) any Regulatory Change or (ii) implementing any risk-based capital guideline or other similar requirement issued by any government or governmental or supervisory authority at the national level (including the implementation of the capital guidelines commonly known as Basle II), of capital in respect of its Commitments or Equipment Notes or funding arrangements utilized in connection with the Equipment Notes. Such compensation shall include, without limitation, an amount equal to any reduction of the rate of return on such Lender’s assets or the Issuing Bank’s capital or on the capital equity of such Lender’s Lender (or the Issuing Bank’s any lending office or such bank holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could ) would have achieved but for such Change law, regulation, interpretation, directive or request, but shall be limited to any such increase in Law costs or reductions attributable for the period commencing sixty (taking into consideration such 60) days prior to Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect notification thereof pursuant to capital adequacy or liquidity) then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction sufferedSection 4.4(c).
(c) A certificate of a Lender, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above Each Lender shall be delivered to the notify Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender, event occurring after the Issuing Bank or other date of this Agreement entitling such Recipient Lender to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to of this Section 4.4 as promptly as practicable following its actual knowledge thereof. Each Lender will use commercially reasonable efforts (at Borrower’s expense) to attempt to mitigate the amount of the Additional Costs associated with such event, including designating a different lending office for any increased costs incurred the Equipment Notes of such Lender affected by such event if such designation will avoid the need for, or reductions suffered more than nine months prior to reduce the date that amount of, such compensation and will not, in the opinion of such Lender, result in any economic, legal or regulatory disadvantage to such Lender (other than economic disadvantages for which Borrower agrees to indemnify such Lender and which indemnity is acceptable to such Lender in its discretion acting reasonably and in good faith based on its credit assessment of Borrower). If after using commercially reasonably efforts as aforesaid such Lender is not able to mitigate the Issuing Bank amount of or other Recipientthe need for such compensation to the reasonable satisfaction of Borrower within thirty (30) days of such Lender’s notice described in Section 4.4(c) hereof, as the case Borrower may be, notifies the Borrower prepay in accordance with Section 2.10 of the Change Applicable Mortgage the unpaid Original Amount of the affected Equipment Notes plus interest accrued thereon and any LIBOR Breakage Amount. Each Lender will furnish to Borrower an officer’s certificate setting forth in Law reasonable detail (i) the events giving rise to such increased Additional Costs, (ii) the basis for determining and allocating such Additional Costs and (iii) the amount of each request by such Lender for compensation under paragraph (a) or (b) of this Section 4.4 (subject, however, to any limitations such Lender may require in respect of disclosure of confidential information relating to its capital structure), together with a statement that the determinations and allocations made in respect of the Additional Costs comply with the provisions of this Section 4.4, including as provided in the last sentence of this paragraph (c). Determinations and allocations by any Lender for purposes of this Section 4.4 of the effect of any Regulatory Change pursuant to paragraph (a) of this Section 4.4, or of the effect of capital maintained pursuant to paragraph (b) of this Section 4.4, on its costs or reductionsrate of return of maintaining Equipment Notes or its funding, or on amounts receivable by it in respect of Equipment Notes, and of the amounts required to compensate such Lender’sLender under this Section 4.4, shall be conclusive, absent manifest error; provided, that such determinations and allocations are made on a reasonable basis and, in the Issuing Bank’s case of allocations, are made fairly.
(d) Borrower shall not be required to make payments under this Section 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 other (ii) the claim arises out of a relocation by such Recipient’s intention to claim compensation therefor Lender of its lending office (except thatany such relocation effected pursuant to Section 4.4(c)), if or (iii) such Lender is not seeking similar compensation for such costs from its borrowers similarly situated with Borrower and commercial aircraft loans generally, or (iv) the Change claim arises as the result of any law or regulation or any interpretation, directive or request of any court or governmental or monetary authority in Law giving rise to any jurisdiction other than an Accepted Jurisdiction, unless, in the case of Section 4.4(d)(iv), such increased costs or reductions claim is retroactive, then made by a Lender that is a United States branch of a foreign commercial bank that has its principal place of business in a country that is a member of the nineOrganization for Economic Co-month period referred to above shall be extended to include operation and Development as of the period date of retroactive effect thereof)this Agreement.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify present or deem applicable any reserve, special deposit, compulsory loan, insurance charge future law governmental rule regulation policy guideline directive or similar requirement against assets of, deposits with whether or for not having the account force of law imposes modifies or credit extended by deems applicable any Lender capital adequacy capital maintenance or the Issuing Bank (except any such reserve similar requirement which is reflected affects the manner in which the Purchaser allocates capital resources to its commitments including any commitments hereunder and as result thereof in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) reasonable opinion of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient of making or maintaining any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing Purchaser the rate of return on such Lender’s or the Issuing Bank’s Purchasers capital or on with regard to the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Bond Purchase is reduced to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company Purchaser could have achieved but for such Change circumstances then in Law (taking into consideration such Lender’s or case and upon notice from the Issuing Bank’s policies and Purchaser to the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) then Borrower from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, Purchaser such additional amount or amounts as will shall compensate the Purchaser for such Lender, reduction in the Issuing Bank or such Lender’s or Purchasers rate of return Such notice shall contain the Issuing Bank’s holding company for statement of the Purchaser with regard to any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, which shall in the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall absence of manifest error be delivered to binding upon the Borrower In determining such amount the Purchaser may use any reasonable method of averaging and attribution that it deems applicable Any rules regulations policies guidelines directives or similar requirements adopted promulgated or implemented in connection with the Xxxx- Xxxxx Xxxx Street Reform and Consumer Protection Act and ii the Bank for International Settlements the Basel Committee on Banking Supervision or any successor or similar authority or any United States Governmental Authority in each case pursuant to Basel III shall in all events be conclusive absent manifest error. The Borrower shall pay such Lender, deemed to have been imposed introduced and adopted after the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt date of the same.
(d) Failure or delay this Purchase Agreement No failure on the part of any Lender, the Issuing Bank or other such Recipient Purchaser to demand compensation pursuant to this Section 2.14 on any one occasion shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s its right to demand such compensation; provided compensation on any other occasion and no failure on the part of the Purchaser to deliver any certificate in timely manner shall in any way reduce any obligation of the Borrower to the Purchaser under this section III CLOSING CONDITIONS
3.1 As precondition to the Purchasers obligation to purchase the Bonds the Borrower will deliver to the Purchaser the following each in form and substance satisfactory to the Purchaser certificate of good standing for the Borrower and evidence of authorization to conduct business in New York each issued within thirty 30 days of the Purchase Date certified copy of the Certificate of Formation of the Borrower and all amendments thereto copy of the Operating Agreement of the Borrower certified by an officer of the Borrower True and correct copies of the resolutions of the Members of the Borrower approving this Purchase Agreement the Purchaser Documents and the Bond Documents Such resolutions shall be certified as to the accuracy due adoption and continuing force and effect thereof by an officer of the Borrower certificate executed by an officer of the Borrower certifying as to the names and true signatures of the officers of the Borrower authorized to execute this Purchase Agreement the Purchaser Documents the Bond Documents and any and all certificates notices and reports referred to in this Purchase Agreement such certificate shall state that the Purchaser may conclusively rely on the statements made therein until the Purchaser shall receive further certificate of such an officer canceling or amending the prior certificate and submitting signatures of the officers named in such further certificate Copies of all approvals authorizations or consents of or notices to or registrations with any Governmental Authority required for the Borrower to enter into this Purchase Agreement the Purchaser Documents and the Bond Documents and to carry out the transactions contemplated hereby and thereby Executed copies of the Bond Documents and the Purchaser Documents or duplicate originals thereof and all other such documents relating to the Bond Documents the Purchaser Documents or this Purchase Agreement as the Purchaser shall reasonably request each of which shall be in form and substance satisfactory to the Purchaser together with evidence of the execution and delivery thereof by person duly authorized to do so and appropriate evidence of such authorization An opinion of counsel to the Borrower as to the legal existence and corporate capacity of the Borrower due corporate authorization of transactions due execution and delivery of documents enforceability of documents no conflict with law no third party consents needed except as already received no conflict with other agreements no litigation and other matters reasonably requested by the Purchaser Payment by the Borrower of all fees and expenses incurred by Purchaser in connection with this Purchase Agreement the Purchaser Documents the Bond Documents and the transactions contemplated herein and therein including without limitation the reasonable fees and disbursements of Purchasers attorney Evidence satisfactory to the Purchaser that no litigation or proceedings are pending or threatened which would or might have Material Adverse Effect and if any outstanding judgment or pending lawsuit exists the Borrower shall provide an explanation satisfactory to the Purchaser of such judgment or lawsuit Loan policy of title insurance to be dated the Purchase Date and issued by title insurance company acceptable to the Purchaser The title insurance policy shall be in an amount equal to the principal amount of the Bonds ii insure that the Mortgage creates valid first lien on the Mortgaged Property all without title insurance exceptions unless otherwise agreed to by the Purchaser including but not limited to mechanics liens parties in possession rights of reverter declarations of restrictive covenants any other standard exceptions and reservation for creditors rights iii name the Trustee as its interests shall appear as the insured party thereunder iv be in the form of XXXXX form of mortgage loan policy with leasehold endorsement and contain such other endorsements and effective coverage as the Purchaser deems appropriate The Purchaser shall also have received evidence on the Purchase Date that all premiums in respect of such policies have been paid current survey of the Mortgaged Property acceptable to the Purchaser and certified in manner satisfactory to the Purchaser by licensed surveyor acceptable to the Purchaser showing the legal description courses and distances of the Mortgaged Property building setback lines utilities flood zones rights-of-way whether above- ground or underground all easements including without limitation appurtenant and servient easements location of all buildings and Improvements and such other matters as the Purchaser may reasonably require and showing no state of facts objectionable to the Purchaser The survey shall also show all encroachments and the lines the distance to and the names of the nearest intersecting streets and such other details as the Purchaser may request Evidence satisfactory to the Purchaser in its sole discretion that the Mortgaged Property is not located in an area identified by the Secretary of Housing and Urban Development as an area located in flood plain or special flood hazards zone pursuant to the National Flood Insurance Act of 1968 or pursuant to the Flood Disaster Act of 1973 or the National Flood Insurance Reform Act of 1994 or any successor law In the event the Mortgaged Property or any portion thereof is located in flood plain or in flood hazard zone the Borrower shall deliver to the Purchaser certificate of insurance evidencing flood hazard insurance if available in form and indicating an amount acceptable to the Purchaser Evidence satisfactory to the Purchaser that any documents including without limitation Financing Statements required to compensate any Lender, be recorded or filed in order to create in favor of the Issuing Bank Issuer or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, Trustee as the case may be, notifies be perfected Lien on and security interest in all collateral covered by the Mortgage the Pledge and Security Agreement the other Purchaser Documents and the Bond Documents as applicable will be properly recorded and/or filed in each office in each jurisdiction required in order to create in favor of the Issuer or the Trustee as the case may be perfected Lien on and security interest in the respective collateral described therein The Purchaser shall have received evidence of all such recordations and acknowledgment copies of all such filings or in lieu thereof the Purchaser shall have received other evidence satisfactory to the Purchaser that all such filings have been made or will be made and the Purchaser shall have received evidence that all necessary reeordation and filing fees and all documentary taxes or other expenses related to such filings or recordations have been paid in full With respect to the Mortgaged Property original certificates of insurance and insurance binders required under the Mortgage the Bond Documents and this Purchase Agreement from insurance companies or associations reasonably acceptable to the Purchaser listing the Issuer the Purchaser and the Trustee and their successors and/or assigns as their interests shall appear as additional insured parties and loss payees as applicable an original additional insured endorsement that indicates that the Issuer the Purchaser and the Trustee are each an additional insured on the certificate of liability insurance evidence satisfactory to the Purchaser that the Issuer the Purchaser and the Trustee will receive thirty 30 days prior written notice of any cancellation of the certificates of liability and property insurance and evidence satisfactory to the Purchaser that all premiums necessary to be paid for the effectiveness of such insurance have been paid by the Borrower Originals or copies certified to be true copies of all governmental and regulatory approvals necessary for the Borrower to execute deliver and perform with respect to this Purchase Agreement and the transactions contemplated hereby Phase environmental report for the Mortgaged Property in form and substance satisfactory to the Purchaser The results of such Phase environmental report shall be satisfactory to the Purchaser in its sole and absolute discretion The Borrower shall also provide any and all subsequent reports or perform any and all subsequent actions which may be determined by the Purchaser to be necessary based upon the results of the Change Phase environmental report Receipt of an upfront fee in Law giving rise the amount of twenty five basis points 0.25% of the par amount of the Bonds Receipt of servicing fee in the amount of Twenty Five Thousand and 00/100 Dollars $25000.00 Other agreements documents or information as the Purchaser and Purchasers counsel may reasonably request
3.2 It is condition to such increased costs the Purchasers obligation to purchase the Bonds that the following statements shall be true and correct on the Purchase Date that the representations and warranties contained in or reductions, incorporated into Section IV hereof are correct on and as of the Purchase Date as though made on and as of such Lender’s, date that no Default or Event of Default hereunder has occurred and is continuing or could result from the Issuing Bank’s transactions contemplated by this Purchase Agreement the Purchaser Documents or other such Recipient’s intention to claim compensation therefor (except that, if the Change Bond Documents and no Material Adverse Effect has occurred since the date of the most recent audited financial statements of the Lessee By its execution of this Purchase Agreement below the Borrower confirms that the statements set forth in Law giving rise to such increased costs or reductions is retroactive, then clauses and above are true and correct as of the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).Purchase Date
Appears in 1 contract
Samples: Bond Purchase Agreement
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, assessment, fee, tax, insurance charge, liquidity or similar requirement (including any compulsory loanloan requirement, insurance charge or similar requirement other assessment) against assets of, deposits with or for the account of of, or credit extended by by, any the Administrative Agent, any Lender or the Issuing Bank any Affiliate, participant, successor or assign thereof (except any such reserve requirement each of which is reflected in the Adjusted LIBO Rateshall be an “Affected Party”);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender Affected Party or any market material to the Issuing Bank or calculation of the London interbank market Benchmark in the relevant date of determination any other condition, cost or expense (other than Excluded Taxes and Non-Excluded Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit Advances or participation therein or the obligation or right of any Lender to make Advances hereunder;
(iii) change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(iv) change the rate for, or the manner in any Letter of Creditwhich 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 Lender, the Issuing Bank Affected Party of funding or such other Recipient of making or maintaining any Loan Advance or of maintaining its obligation to make any such Advance or otherwise performing its obligations under the Credit Documents or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Affected Party or to reduce the amount of any sum received or receivable by such LenderAffected Party, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) otherwise or to require any payment calculated by reference to the amount of interest or loans received or held by such Affected Party, then the Administrative Agent shall give the Borrower, the Warehouse Collateral Manager and each Subordinated Lender prompt notice thereof and the Borrower will shall either pay the aggregate outstanding principal amount of all Advances then outstanding or pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Affected Party such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Affected Party for such additional costs incurred or reduction sufferedsuffered on the next date that such amounts are available for distribution in accordance with the priority of payments set forth in the Security Agreement.
(b) If any Lender or the Issuing Bank shall have determined Affected Party determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing BankAffected Party’s capital or on the capital of such Lender’s or the Issuing BankAffected Party’s holding company, if any, as a consequence of this Agreement or the Loans Advances made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Affected Party to a level below that which such Lender Affected Party or the Issuing Bank or such Lender’s or the Issuing BankAffected Party’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing BankAffected Party’s policies and the policies of such Lender’s or the Issuing BankAffected Party’s holding company with respect to capital adequacy or and liquidity) ), then from time to time the Administrative Agent shall give the Borrower, the Warehouse Collateral Manager and each Subordinated Lender prompt notice thereof and the Borrower shall either pay the aggregate outstanding principal amount of all Advances then outstanding or pay to such Lender or the Issuing Bank, as the case may be, Affected Party such additional amount or amounts as will compensate such Lender, the Issuing Bank Affected Party or such Lender’s or the Issuing BankAffected Party’s holding company for any such reduction sufferedsuffered on the next date that such amounts are available for distribution in accordance with the priority of payments set forth in the Security Agreement.
(c) A certificate of a Lender, an Affected Party providing an explanation of the Issuing Bank or such other Recipient applicable Change in Law and setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Affected Party or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph clause (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).this
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If The Borrower shall pay to the Agent, for the account of each Lender, from time to time within five (5) Business Days of its receipt of the certificate referred to in Section 2.5(c) (with a copy to the Agent) such amounts as such Lender may determine to be reasonably necessary to compensate it or its holding company for any increased costs which such Lender determines are attributable to its making or maintaining Loans, issuing Letters of Credit, or maintaining Commitments hereunder, or any reduction in any amount receivable by such Lender hereunder in respect of any such Loans, Letters of Credit or Commitments, resulting from any Regulatory Change in Law shall:
which: (i) imposechanges the basis of taxation of any amounts payable to such Lender under this Agreement in respect of any of such Loans, modify Letters of Credit or deem applicable Commitments (other than taxes imposed on the overall net income or franchise taxes of Lender); or (ii) imposes or modifies any reserve, special deposit, compulsory loandeposit insurance or assessment, insurance charge minimum capital, capital ratio or similar requirement against relating to any extensions of credit or other assets of, or any deposits with or for the account of or credit extended by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other conditionof, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter holding company of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, but excluding any such reserve to the Issuing Bank extent reflected in the definition of Eurodollar Rate (including a request or requirement which affects the manner in which such other Recipient of making Lender or maintaining any Loan or the holding company thereof allocates capital resources to increase commitments, including the cost Commitments). Each Lender will notify the Borrower (with a copy to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount Agent) of any sum received or receivable by event occurring after the date of this Agreement which will entitle such Lender, the Issuing Bank or Lender to compensation pursuant to this subsection (a) as promptly as practicable after it obtains knowledge thereof and determines to request such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction sufferedcompensation.
(b) If any Lender or the Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or would have Without limiting the effect of reducing the rate foregoing provisions of return on this Section 2.5 (but without duplication), the Borrower shall pay to the Agent, for the account of each Lender, from time to time within five (5) Business Days of its receipt of the certificate referred to in Section 2.5(c) (with a copy to the Agent), such Lender’s amounts as such Lender may determine to be reasonably necessary to compensate such Lender for any costs which it determines are attributable to the maintenance by it or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s its holding company, if anypursuant to any Regulatory Change, as a consequence of this Agreement or the Loans made or participations capital in respect of its Loans, Letters of Credit purchased by or Commitments (such compensation to include an amount equal to any reduction in return on assets or equity of such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto its holding company to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company it could have achieved but for such Change in Law law, regulation, interpretation, directive or request). Each Lender will notify the Borrower (taking into consideration with a copy to the Agent) if it is entitled to compensation pursuant to this subsection (b) as promptly as practicable after it determines to request such Lender’s or the Issuing Bank’s policies and the policies compensation.
(c) Each notice delivered by a Lender pursuant to this Section 2.5 shall contain a statement of such Lender’s or the Issuing Bank’s holding company with respect Lender as to capital adequacy or liquidity) then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, any such additional amount or amounts as will compensate such Lender(including calculations thereof in reasonable detail) which shall, in the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate absence of a Lender, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt be presumed correct of the samematters stated therein and be binding upon the Borrower. In determining such amount, such Lender may use any method of averaging and attribution that it in good faith shall deem applicable.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the The Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section 2.5 for any increased costs amounts incurred or reductions suffered more than nine months one hundred and eighty (180) days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor therefor; and provided, further, that (except that, x) if the Change in Law circumstances giving rise to such increased costs or reductions is retroactiveclaim have a retroactive effect, then the nine-month such one hundred and eighty (180) day period referred to above shall be extended to include the period of such retroactive effect thereof)effect, and (y) the limitation set forth in this proviso shall not apply to amounts already included in the determination of the applicable Eurodollar Rate.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) 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 account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate)LIBOR;
(ii) subject the Administrative Agent or any Recipient Lender to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Excluded Taxes) on its loans, loan principal, letters of credit, commitments, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (in each case, other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of CreditLender; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Loan (or of maintaining its obligation to increase the cost to make any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Loan) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder Lender (whether of principal, interest or otherwise) ), then the Borrower will pay to such Lender, the Issuing Bank or upon written request of such other RecipientLender, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Lender, to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) ), then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered. Notwithstanding any other provision herein, no Lender shall demand compensation pursuant to this Section 2.16(b) as a result of a Change in Law resulting from Basel III or the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act if it shall not at the time be the general policy or practice of such Lender to demand such compensation from similarly situated borrowers (to the extent that, with respect to such Change in Law, such Lender has the right to do so under its credit facilities with similarly situated borrowers).
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the its holding company, as applicable, as specified in paragraph (a) or (b) above of this Section 2.16 shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 days Business Days after its receipt of the samethereof.
(d) Promptly after any Lender has determined that it will make a request for increased compensation pursuant to this Section 2.16, such Lender shall notify the Borrower. Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 2.16 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section 2.16 for any increased costs incurred or reductions suffered incurred more than nine months 90 days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except thattherefor; provided, further, that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine90-month day period referred to above shall be extended to include the period of retroactive effect thereof).
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If after the date of this Agreement the adoption of or any Change change in any Requirement of Law shallor in the interpretation or administration thereof by any Governmental Authority (whether or not having the force of law) or compliance by Agent 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 Closing Date:
(i1) shall change the basis of taxation of payments to Agent 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 Agent or such Lender, as the case may be, by the jurisdiction in which such Person has its principal office (or lending office) or by any political subdivision or taxing authority therein); or
(2) shall impose, modify or deem hold applicable any reserve, special deposit, compulsory loan, insurance charge loan or other similar requirement against assets of, deposits with or for the account of or credit extended by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitmentsof, or other obligationsextensions of credit by, any office of Agent or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender (which requirement, with respect to Loans, is not otherwise included in the determination of the Adjusted Eurodollar Rate or the Issuing Bank or the London interbank market any other conditionBase Rate, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Creditas applicable); and the result of any of the foregoing shall be is to increase the cost to such LenderPerson of making, the Issuing Bank or such other Recipient of making converting into, continuing or maintaining any Loan Loans or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or purchasing and maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit therein, or to reduce the any amount of receivable hereunder in respect thereof, then, in any sum received such case, Borrower shall pay to Agent or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such any additional amount or amounts as will necessary to compensate such LenderPerson for such increased cost or reduced receipt, together with interest on such amount from the Issuing Bank date of the required payment until payment in full thereof at a rate equal at all times to the Base Rate or such other Recipientthe Default Rate, as applicable. If any Person becomes entitled to claim any additional amounts pursuant to this subsection, it shall promptly notify Borrower, through Agent, of the case may be, for such additional costs incurred or reduction sufferedevent 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 hereunder.
(b) If Agent or any Lender or the Issuing Bank shall have determined that the applicability of any Change law, rule, regulation or guideline adopted after the Closing Date pursuant to or arising out of the July 1988 report of the Basic Committee on Banking Regulations and Supervisory Practices entitled "International Convergence of Capital Measurement and Capital Standards", or the adoption after the Closing Date of any other law, rule, regulation or guideline regarding capital adequacy, or any change in Law any of the foregoing or 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 such Person or any such Person's holding company with any request or directive regarding capital adequacy (whether or liquidity requirements not 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 such Lender’s Person's or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, 's capital as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto its obligations hereunder to a level below that which such Lender or the Issuing Bank Person or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law adoption, change or compliance (taking into consideration such Lender’s Person's or the Issuing Bank’s such holding company's policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidityadequacy) by an amount deemed by such Person to be material, then from time to time the time, after submission by such Person to Borrower (with a copy to Agent) of a written request therefor, Borrower shall pay to such Lender or the Issuing Bank, as the case may be, Person such additional amount or amounts as will compensate such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company Person for any such reduction suffered.
(c) A certificate of a Agent or the applicable Lender, as the Issuing Bank or such other Recipient case may be, setting forth the such amount or amounts as shall be necessary to compensate such Lender, the Issuing Bank Person or such other Recipient or the its holding company, as applicable, company as specified in paragraph (a) or (b) above above, as the case may be, shall be delivered to the Borrower (with a copy to Agent) and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Person the amount shown as due on any such certificate delivered by it within 10 days Business Days after its receipt of the same.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).
Appears in 1 contract
Samples: Revolving Credit Agreement (Hospitality Properties Trust)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, liquidity or similar requirement (including any compulsory loanloan requirement, insurance charge or similar requirement other assessment) against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate)Note Purchaser;
(ii) impose on any Note Purchaser or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Note Fundings made by such Note Purchaser or participation therein; or
(iii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loansnotes, loan note principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank Note Purchaser or such other Recipient of making funding any Note or of maintaining its obligation to fund any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Note or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank Note Purchaser or such other Recipient hereunder (hereunder, whether of principal, interest or otherwise) , then the Borrower Issuer will pay to such Lender, the Issuing Bank Note Purchaser or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank Note Purchaser or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined Note Purchaser determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing BankNote Purchaser’s capital or on the capital of such Lender’s or the Issuing BankNote Purchaser’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level Notes below that which such Lender or the Issuing Bank or Note Purchaser such Lender’s or the Issuing BankNote Purchaser’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing BankNote Purchaser’s policies and the policies of such Lender’s or the Issuing BankNote Purchaser’s holding company with respect to capital adequacy or and liquidity) ), then from time to time the Borrower shall Issuer will pay to such Lender or the Issuing Bank, as the case may be, Note Purchaser such additional amount or amounts as will compensate such Lender, the Issuing Bank Note Purchaser or such Lender’s or the Issuing BankNote Purchaser’s holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Note Purchaser setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Note Purchaser or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph (a) or (b) above of this Section, and a description of the cause and a calculation of the increased cost of funding to the Note Purchaser, shall be delivered to the Borrower Issuer and shall be conclusive absent manifest error. The Borrower Issuer shall pay such Lender, the Issuing Bank or such other Recipient Note Purchaser the amount shown as due on any such certificate delivered by it within 10 days ten (10) Business Days after its receipt of the samethereof.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Note Purchaser to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other RecipientNote Purchaser’s right to demand such compensation; provided that the Borrower Issuer shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Note Purchaser pursuant to this Section for any increased costs incurred or reductions suffered incurred more than nine months 360 days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Note Purchaser notifies the Borrower Issuer of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such RecipientNote Purchaser’s intention to claim compensation therefor (except therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine360-month day period referred to above shall be extended to include the period of retroactive effect thereof).
Appears in 1 contract
Samples: Note Issuance and Purchase Agreement (Enova International, Inc.)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, liquidity or similar requirement (including any compulsory loanloan requirement, insurance charge or similar requirement other assessment) against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate)Note Purchaser;
(ii) impose on any Note Purchaser or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Note Fundings made by such Note Purchaser or participation therein; or
(iii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loansnotes, loan note principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank Note Purchaser or such other Recipient of making funding or maintaining any Loan Note or of maintaining its obligation to increase the cost to fund any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Note or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank Note Purchaser or such other Recipient hereunder (hereunder, whether of principal, interest or otherwise) , then the Borrower Issuer will pay to such Lender, the Issuing Bank Note Purchaser or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank Note Purchaser or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined Note Purchaser determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing BankNote Purchaser’s capital or on the capital of such Lender’s or the Issuing BankNote Purchaser’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level Notes below that which such Lender or the Issuing Bank or Note Purchaser such Lender’s or the Issuing BankNote Purchaser’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing BankNote Purchaser’s policies and the policies of such Lender’s or the Issuing BankNote Purchaser’s holding company with respect to capital adequacy or and liquidity) ), then from time to time the Borrower shall Issuer will pay to such Lender or the Issuing Bank, as the case may be, Note Purchaser such additional amount or amounts as will compensate such Lender, the Issuing Bank Note Purchaser or such Lender’s or the Issuing BankNote Purchaser’s holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Note Purchaser setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Note Purchaser or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph (a) or (b) above of this Section, and a description of the cause and a calculation of the increased cost of funding to the Note Purchaser, shall be delivered to the Borrower Issuer and shall be conclusive absent manifest error. The Borrower Issuer shall pay such Lender, the Issuing Bank or such other Recipient Note Purchaser the amount shown as due on any such certificate delivered by it within 10 days ten (10) Business Days after its receipt of the samethereof.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Note Purchaser to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other RecipientNote Purchaser’s right to demand such compensation; provided that the Borrower Issuer shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Note Purchaser pursuant to this Section for any increased costs incurred or reductions suffered incurred more than nine months 360 days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Note Purchaser notifies the Borrower Issuer of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such RecipientNote Purchaser’s intention to claim compensation therefor (except therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine360-month day period referred to above shall be extended to include the period of retroactive effect thereof).
Appears in 1 contract
Samples: Note Issuance and Purchase Agreement (Enova International, Inc.)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) shall impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Loan (or of maintaining its obligation to increase the cost to make any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Loan) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient Lender hereunder (whether of principal, interest or otherwise) ), then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon Lender on demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans Loan made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company company, as applicable, could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company company, as applicable, with respect to capital adequacy or liquidity) adequacy), then from time to time the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, on demand such additional amount or amounts as will compensate such Lender, the Issuing Bank ’s or such Lender’s or the Issuing Bank’s holding company company, as applicable, for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the Lender’s holding company, as applicablethe case may be, as specified in paragraph (aSections 3.3(a) or and (b) above ), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender on demand the amount shown as due on any such certificate delivered by it within 10 days after its receipt pursuant to Section 2.4 of the samethis Agreement.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 3.3 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section 3.3 for any increased costs incurred or reductions suffered incurred more than nine months 180 days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except therefor; provided, further, that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine180-month day period referred to above shall be extended to include the period of retroactive effect thereof).
(e) Anything contained herein to the contrary notwithstanding, in the event that: (i) any Lender (an “Increased-Cost Lender”) shall give notice to Borrower that such Lender is entitled to receive payments under this Section 3.3, (ii) the circumstances which have caused such Lender to be entitled to receive such payments shall remain in effect, and (iii) such Lender shall fail to withdraw such notice within five (5) Business Days after the Borrower’s request for such withdrawal, the Agent may, if requested by the Borrower in writing, which notice shall identify a Replacement Lender (as defined below) by giving written notice to Increased-Cost Lender and Agent of the Borrower’s election to do so, instruct such Increased-Cost Lender to assign its outstanding Loan in full to one (1) or more new lenders acceptable to Agent in its sole discretion (each a “Replacement Lender”) in accordance with, and subject to the provisions of, Section 12.2; provided, on the date of such assignment, the Replacement Lender shall pay to such Increased-Cost Lender an amount equal to the principal of, and all accrued interest on, all outstanding Loans of such Increased-Cost Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (CURO Group Holdings Corp.)
Increased Costs Capital Adequacy. (a) If The Borrower shall pay to each Lender from time to time on demand such amounts as such Lender may determine to be reasonably necessary to compensate it or its holding company for any material costs applicable to its credit transactions generally which such Lender determines are attributable to its making or maintaining Loans, issuing Letters of Credit, or maintaining Commitments hereunder, or any reduction in any amount receivable by such Lender hereunder in respect of any such Loans, Letters of Credit or Commitments, resulting from any Regulatory Change in Law shall:
which: (i) imposechanges the basis of taxation of any amounts payable to such Lender under this Agreement in respect of any of such Loans, modify Letters of Credit or deem applicable Commitments (other than Taxes covered by Section 3.6); or (ii) imposes or modifies any reserve, special deposit, compulsory loandeposit insurance or assessment, insurance charge minimum capital, capital ratio or similar requirement against relating to any extensions of credit or other assets of, or any deposits with or for the account of or credit extended by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other conditionof, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter holding company of Credit such Lender (including a request or participation requirement which affects the manner in which such Lender or the holding company thereof allocates capital resources to commitments, including the Commitments). Each affected Lender will notify the Borrower in writing of any event occurring after the date of this Agreement which will entitle such Lender to compensation pursuant to this subsection (a) as promptly as practicable after (but within 180 days in any Letter of Credit; event after) it obtains knowledge thereof and the result of any of the foregoing shall be determines to increase the cost to request such Lender, the Issuing Bank or such other Recipient of making or maintaining any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction sufferedcompensation.
(b) If any Lender or the Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or would have Without limiting the effect of reducing the rate foregoing provisions of return on this Section 2.4 (but without duplication), the Borrower shall pay to each Lender from time to time upon demand by such Lender’s Lender such amounts as such Lender may reasonably determine to be necessary to compensate such Lender for any costs which it reasonably determines are attributable to the maintenance by it or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s its holding company, if anypursuant to any Law or regulation of any jurisdiction or any interpretation, as a consequence directive or request (whether or not having the force of Law) of any court or governmental or monetary authority, in effect after the date of this Agreement or the Loans made or participations Agreement, of capital in respect of its Loans, Letters of Credit purchased by or Commitments (such compensation to include an amount equal to any reduction in return on assets or equity of such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto its holding company to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company it could have achieved but for such Change in Law Law, regulation, interpretation, directive or request). Each Lender will notify the Borrower if it is entitled to compensation pursuant to this subsection (taking into consideration b) as promptly as practicable after it determines to request such Lender’s or the Issuing Bank’s policies and the policies compensation.
(c) Each notice delivered by a Lender pursuant to this Section 2.4 shall contain a statement of such Lender’s or the Issuing Bank’s holding company with respect Lender as to capital adequacy or liquidity) then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, any such additional amount or amounts as will compensate (including calculations thereof in reasonable detail) which shall, in the absence of manifest error, be presumed correct of the matters stated therein and be binding upon the Borrower. In determining such Lenderamount, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for each affected Lender may use any such reduction suffered.
(c) A certificate method of a Lender, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as averaging and attribution that it in good faith shall deem applicable, as specified in paragraph (a) or (b) above shall be delivered . Notwithstanding anything to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to contrary in this Section 2.14 shall not constitute a waiver of such Lender’s2.4, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section 2.4 for any increased costs amounts incurred or reductions suffered more than nine months one hundred eighty (180) days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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)therefor.
Appears in 1 contract
Samples: Credit Agreement (Dana Holding Corp)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by any by, Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Applicable Rate);; or
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) condition affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of CreditLender; and and
(iii) the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Loan (or of maintaining its obligation to increase the cost to make any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Loan) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient Lender hereunder (whether of principal, interest or otherwise) ), then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company company, as applicable, could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company company, as applicable, with respect to capital adequacy or liquidity) adequacy), then from time to time the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company company, as applicable, for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender or Lender, the Issuing Bank or such other Recipient or the ’s holding company, as applicablethe case may be, as specified in paragraph (aSections 6.18(a) or and (b) above ), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the samethereof.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 6.18 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above Lender pursuant to this Section 6.18 for any increased costs incurred or reductions suffered incurred more than nine months 180 days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine180-month day period referred to above shall be extended to include the period of retroactive effect thereof).
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (NationsHealth, Inc.)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) impose on any Lender or the London interbank market any other condition affecting this Agreement or Eurodollar Rate Loans made by such Lender; or
(iii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense thereto (other than (A) Indemnified Taxes and (B) Other Connection Taxes on gross or net income, profits or revenue (including value-added or similar Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit)); and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank Lender or such other Recipient of making or maintaining any Eurodollar Rate Loan (or of maintaining its obligation to increase the cost to make any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Loan) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) ), then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) adequacy), then from time to time the Borrower shall will pay to such Lender or the Issuing BankLender, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph (a) or (b) above of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).manifest
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Douglas Dynamics, Inc)
Increased Costs Capital Adequacy. (a) If The Borrower shall pay to each Lender from time to time on demand such amounts as such Lender may determine to be reasonably necessary to compensate it or its holding company for any costs which such Lender determines are attributable to its making or maintaining Loans, purchasing or maintaining participations in Letters of Credit, or maintaining Commitments hereunder or its obligation to make any such Loans hereunder, or any reduction in any amount receivable by such Lender hereunder in respect of any such Loans, Commitments or obligation, resulting from any Regulatory Change in Law shall:
which: (i) imposechanges the basis of taxation of any amounts payable to such Lender under this Agreement in respect of any of such Loans, modify Letters of Credit or deem applicable Commitments (other than taxes imposed on the overall net income of such Lender); or (ii) imposes or modifies any reserve, special deposit, compulsory loandeposit insurance or assessment, insurance charge minimum capital, capital ratio or similar requirement against requirements relating to any extensions of credit or other assets of, or any deposits with or for other liabilities of, such Lender or any holding company of such bank (including, without limitation, a request or requirement which affects the account of or credit extended by manner in which any Lender or the Issuing Bank (except holding company of any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient thereof allocates capital resources to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on including the Commitments and obligations of such Lender hereunder). Each Lender will notify the Borrower of any Lender or event occurring after the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting date of this Agreement or Loans made by which will entitle such Lender or any Letter of Credit or participation in any Letter of Credit; to compensation pursuant to this subsection (a) as promptly as practicable after it obtains knowledge thereof and the result of any of the foregoing shall be determines to increase the cost to request such Lender, the Issuing Bank or such other Recipient of making or maintaining any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction sufferedcompensation.
(b) If any Lender or the Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or would have Without limiting the effect of reducing the rate foregoing provisions of return on this SECTION 2.4 (but without duplication), the Borrower shall pay to each Lender from time to time upon demand by such Lender’s Lender such amounts as the Lender may determine to be reasonably necessary to compensate such Lender for any costs which it determines are attributable to the maintenance by it or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s its holding company, if anypursuant to any law or regulation of any jurisdiction or any interpretation, as a consequence directive or request (whether or not having the force of law) of any court or governmental or monetary authority, whether in effect on the date of this Agreement or the Loans made or thereafter, of capital in respect of its Loans, its participations in Letters of Credit purchased by such Lender pursuant hereto or its obligation to make the Loans or to purchase participations in Letters of Credit issued by the Issuing Bank pursuant hereto (such compensation to include, without limitation, an amount equal to any reduction in return on assets or equity of such Lender or its holding company to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company it could have achieved but for such Change in Law law, regulation, interpretation, directive or request). The Lender will notify the Borrower (taking into consideration with a copy to the Agent) if it is entitled to compensation pursuant to this subsection (b) as promptly as practicable after it determines to request such Lender’s or the Issuing Bank’s policies and the policies compensation.
(c) Each notice delivered by any Lender pursuant to this SECTION 2.4 shall contain a statement of such Lender’s or the Issuing Bank’s holding company with respect Lender as to capital adequacy or liquidity) then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, any such additional amount or amounts as will compensate such Lender(including calculations thereof in reasonable detail) which shall, in the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate absence of a Lendermanifest error, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the samematters stated therein and be binding upon the Borrower. In determining such amount, any Lender may use any method of averaging and attribution that it in good faith shall deem applicable.
(d) Failure or delay on Without prejudice to the part survival of any Lenderother agreement of the Borrower hereunder or under any other Loan Document, the Issuing Bank agreements and obligations of the Borrower contained in this SECTION 2.4 shall survive the payment in full of principal, interest and other amounts payable hereunder and under the Notes and the other Loan Documents.
(e) Notwithstanding anything in this SECTION 2.4 to the contrary, to the extent that notice is given by any Lender to the Borrower of any additional amount owing to such Lender under this SECTION 2.4 more than 360 days after the occurrence of the event giving rise to such obligation, such Lender shall not be entitled to compensation under this SECTION 2.4 for any amounts incurred or other accruing 360 days prior to the giving of such Recipient notice to demand Borrower.
(f) Upon the receipt by the Borrower from any Lender (an "AFFECTED LENDER") of a claim for compensation pursuant to this Section 2.14 shall not constitute a waiver SECTION 2.4 or SECTION 3.5, the Borrower may (i) request one or more of the Lenders to acquire all or part of such Affected Lender’s's Loans, participations in the Issuing Bank’s or Letters of Credit and Commitment (provided that no such other Recipient’s right Lender shall have any obligation to demand so acquire or assume all or any part of such compensation; provided that Affected Lender's Loans and Commitment), or (ii) designate a Lender (a "REPLACEMENT LENDER") reasonably satisfactory to the Borrower Agent. Any such designation of a Replacement Lender under clause (ii) shall be subject to the prior written consent of the Agent, which consent shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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)unreasonably withheld.
Appears in 1 contract
Increased Costs Capital Adequacy. (ai) If any Change in Law shall:
shall (iA) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(iiB) subject any Recipient Lender to any Taxes (other than (Ax) Indemnified TaxesTaxes indemnified pursuant to Section 13.8, (By) Taxes described in clauses that are excluded from indemnification by reason of Section 13.8(g) or (bi), or (z) through (d) of the definition of Excluded Taxes and (C) any Connection Income Taxes) Taxes on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining the Term Loans (or of maintaining its obligation to make any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Term Loans) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient Lender hereunder (whether of principal, interest or otherwise) then the ), Borrower will shall pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(bii) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Term Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company company, as applicable, could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company company, as applicable, with respect to capital adequacy or liquidity) adequacy), then Uniti – Bridge Loan and Security Agreement #97751373v29 from time to time the time, Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank ’s or such Lender’s or the Issuing Bank’s holding company company, as applicable, for any such reduction suffered.
(ciii) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the Lender’s holding company, as applicablethe case may be, as specified in paragraph clauses (ai) or and (bii) above above, shall be delivered to Borrower (with a copy to the Borrower Administrative Agent) and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 ten (10) days after its receipt of the same.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensationthereof; provided that with respect to any notice given to the Borrower under this Section 3.2 the Borrower shall not be required under any obligation to compensate pay any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant amount with respect to this Section for any increased costs incurred or reductions suffered more than nine months period prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise is nine (9) months prior to such increased costs or reductionsnotice; provided, and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except thatfurther, if the Change in Law giving rise to such increased costs or reductions Increased Costs is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof). A Lender will, within a reasonable period of time after the officer of such Lender having primary responsibility for administering the Loan becomes aware of the occurrence of an event or the existence of a condition that would entitle such Lender to receive payments under this Section 3.2, to avoid or reduce any increased or additional costs or any other amounts payable by Borrowers under this Section 3.2, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (i) make, issue, fund or maintain its portion of the Term Loan through another office of such Lender, or (ii) take such other measures as such Lender may deem reasonable, if as a result thereof the circumstances which would cause the additional amounts which would otherwise be required to be paid to such Lender pursuant to this Section 3.2 to be materially reduced and if, as determined by such Lender in its reasonable discretion, the making, issuing, funding or maintaining of its portion of the Term Loan through such other office or in accordance with such other measures, as the case may be, would not otherwise adversely affect the interests of such Lender.
(iv) Failure or delay on the part of any Lender to demand compensation pursuant to this Section 3.2(a) shall not constitute a waiver of such Lender’s right to demand such compensation; provided, however, Borrower shall not be required to compensate any Lender pursuant to this Section 3.2 for any increased costs or reductions or other amounts suffered more than sixty (60) days prior to the date that such Lender notifies Borrower of the event or the existence of a condition that would entitle such Lender to receive payments under this Section 3.2.
Appears in 1 contract
Samples: Bridge Loan and Security Agreement (Uniti Group Inc.)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify shall increase the cost to or deem applicable impose a cost upon any reserve, special deposit, compulsory loan, insurance charge Affected Party of funding or similar requirement against assets of, deposits with making or for the account maintaining any Advance or of or credit extended by any Lender or the Issuing Bank (except maintaining its obligation to make any such reserve requirement which is reflected in Advance or otherwise performing its obligations under the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, Transaction Documents or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient of making or maintaining any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Affected Party or to reduce the amount of any sum received or receivable by such LenderAffected Party, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) otherwise or to require any payment calculated by reference to the amount of interest or loans received or held by such Affected Party, then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Affected Party such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Affected Party for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined Affected Party determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s Affected Party's capital or on the capital of such Lender’s or the Issuing Bank’s Affected Party's holding company, if any, as a consequence of this Agreement or the Loans Advances made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Affected Party to a level below that which such Lender Affected Party or the Issuing Bank or such Lender’s or the Issuing Bank’s Affected Party's holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s Affected Party's policies and the policies of such Lender’s or the Issuing Bank’s Affected Party's holding company with respect to capital adequacy or and liquidity) ), then from time to time the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, Affected Party such additional amount or amounts as will compensate such Lender, the Issuing Bank Affected Party or such Lender’s or the Issuing Bank’s Affected Party's holding company for any such reduction suffered.
(c) A certificate of a Lender, an Affected Party providing an explanation of the Issuing Bank or such other Recipient applicable Change in Law and setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Affected Party or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph clause (a) or (b) above of this Section 2.10 shall be delivered to the Borrower and shall be conclusive absent manifest error. In determining any amount provided for in this Section 2.10, the Affected Party may use any reasonable averaging and attribution methods. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Affected Party the amount shown as due on any such certificate delivered by it within 10 days after its on the Payment Date following receipt of the samethereof.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Affected Party to demand compensation pursuant to this Section 2.14 2.10 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s any Affected Party's right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above Affected Party pursuant to this Section 2.10 for any increased costs incurred or reductions suffered incurred more than nine months one hundred and twenty (120) days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Affected Party notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’s Affected Party's intention to claim compensation therefor (except therefor; provided, further, that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month one hundred and twenty (120)-day period referred to above shall be extended to include the period of retroactive effect thereof).
(e) In the event that any Affected Party shall incur any loss or expense (including any loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Affected Party to make any purchase or loan or maintain any purchase or loan) as a result of any Advance not being made in accordance with a request therefor under Section 2.02, then, on the Payment Date following written notice from such Affected Party to the Borrower, the Borrower shall pay to such Affected Party, the amount of such loss or expense. Such written notice (which shall include calculations in reasonable detail) shall, in the absence of manifest error, be conclusive and binding upon the Borrower.
Appears in 1 contract
Samples: Loan and Servicing Agreement (CION Investment Corp)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);;
(ii) impose on any Lender or the Londonapplicable offshore interbank market any other condition affecting this Agreement or Eurodollar Rate Loans made by such Lender; or
(iii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense thereto (other than (A) Indemnified Taxes and (B) Other Connection Taxes on gross or net income, profits or revenue (including value-added or similar Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit)); and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank Lender or such other Recipient of making or maintaining any Loan (or of maintaining its obligation to increase the cost to make any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Loan) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) ), then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy requirements or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) ), then from time to time the Borrower shall will pay to such Lender or the Issuing BankLender, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph (a) or (b) above of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, as the Issuing Bank or such other Recipient case may be, the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the samethereof.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section for any increased costs incurred or reductions suffered incurred more than nine months 180 days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine180-month day period referred to above shall be extended to include the period of retroactive effect thereof).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Hydrofarm Holdings Group, Inc.)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge liquidity or similar requirement against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);; or
(ii) subject any Recipient Lender to any Taxes (other than (A) Indemnified TaxesTax of any kind whatsoever with respect to this Agreement, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitmentsany Loan made by it, or other obligationschange the basis of taxation of any payments to such Lender in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 2.17 and the imposition of, or its depositsany change to, reserves, other liabilities or capital attributable theretothe rate of any Excluded Tax payable by such Lender); or
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) condition affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of CreditLender; and the result of any of the foregoing shall be to increase the cost to such LenderLender of making, the Issuing Bank or such other Recipient of making converting to, continuing or maintaining any Eurodollar Loan (or of maintaining its obligation to make Eurodollar Loans) or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Lender or to reduce the any amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient Lender hereunder (whether of principal, interest or otherwise) ), then the Borrower will shall pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, it for such additional costs cost incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Lender, to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or and liquidity) ), then from time to time following receipt of the certificate referred to in subsection (c) of this Section, the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank it or such Lender’s or the Issuing Bank’s its holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank it or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph subsection (a) or (b) above of this Section shall be delivered to the Borrower and shall be conclusive absent manifest errorrebuttably presumed to be correct. Each such certificate shall contain a representation and warranty on the part of the Lender to the effect that such Lender has complied with its obligations pursuant to Section 2.20 hereof in an effort to eliminate or reduce such amount. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the samethereof.
(d) Failure or delay on the part of by any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 shall will not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s its right to demand such compensation; provided that the Borrower shall will not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section for any increased costs cost or reduction incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, 180 days before it notifies the Borrower of the Change in Law giving rise to such increased costs cost or reductions, reduction and of such Lender’s, the Issuing Bank’s or other such Recipient’s its intention to claim compensation therefor (except thattherefor. However, if the Change in Law giving rise to such increased costs cost or reductions reduction is retroactive, then the nine180-month day period referred to above shall will be extended to include the period of retroactive effect thereof.
(e) Within four (4) months following the date such certificate is furnished claiming compensation by any such Lender (an “Affected Lender”, which term shall also include a Lender making a demand under Section 2.17), the Borrower may replace the Affected Lender pursuant to the provisions of Section 9.15.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If If, after the Agreement Date, the adoption of any Change Applicable Law or any change in any Applicable Law shallor any change in the interpretation or administration thereof by any Governmental Authority or compliance by any Lender (or its Lending Office) with any request or directive (whether or not having the force of law) of any such Governmental Authority:
(i) shall subject such Lender (or its Lending Office) to any tax, duty, or other charge with respect to any LIBOR Loans, such Lender's Note, or the obligation of such Lender to make LIBOR Loans, or change the basis of taxation of any amounts payable to such Lender (or its Lending Office) under this Agreement or such Lender's Note in respect of any LIBOR Loans (other than taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or such Lending Office);
(ii) shall impose, modify modify, or deem applicable any reserve, special deposit, compulsory loanassessment, insurance charge or similar requirement against assets of, deposits with or for (other than the account Reserve Requirement utilized in the determination of or credit extended by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient relating to any Taxes (extensions of credit or other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitmentsassets of, or other obligations, any deposits with or its deposits, reserves, other liabilities or capital attributable theretocommitments of, such Lender (or its Lending Office), including the Commitment of such Lender hereunder; or
(iii) shall impose on any such Lender (or the Issuing Bank its Lending Office) or the London interbank market any other condition, cost or expense (other than Taxes) condition affecting this Agreement or Loans made by such Lender Lender's Note or any Letter of Credit such extensions of credit or participation in any Letter of Creditliabilities or commitments; and the result of any of the foregoing shall be is to increase the cost to such LenderLender (or its Lending Office) of making, the Issuing Bank or such other Recipient of making Converting into, Continuing, or maintaining any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit LIBOR Loans or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank Lender (or its Lending Office) under this Agreement or such other Recipient hereunder (whether of principalLender's Note with respect to any LIBOR Loans, interest or otherwise) then the Borrower will shall pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon Lender on demand such additional amount or amounts as will compensate such LenderLender for such increased cost or reduction. If any Lender requests compensation by the Borrower under this Section 5.17., the Issuing Bank Borrower may, by notice to such Lender (with a copy to the Administrative Agent), suspend the obligation of such Lender to make or Continue LIBOR Loans or to Convert Base Rate Loans into LIBOR Loans, until the event or condition giving rise to such other Recipient, as request ceases to be in effect (in which case the case may be, for provisions of Section 2.10. shall be applicable); provided that such additional costs incurred or reduction sufferedsuspension shall not affect the right of such Lender to receive the compensation so requested.
(b) If If, after the Agreement Date, any Lender or the Issuing Bank shall have determined that the adoption of any Change in Applicable Law regarding capital adequacy or liquidity requirements any change therein or in the interpretation or administration thereof by any Governmental Authority, or any request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s Lender or the Issuing Bank’s holding company, if any, any corporation controlling such Lender as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Lender's obligations hereunder to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company corporation could have achieved but for such Change in Law adoption, change, request, or directive (taking into consideration such Lender’s or the Issuing Bank’s its policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) adequacy), then from time to time upon demand the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or Lender for such Lender’s or the Issuing Bank’s holding company for any such reduction sufferedreduction.
(c) A certificate Each Lender shall promptly notify the Borrower and the Administrative Agent of a Lenderany event of which it has knowledge, occurring after the Issuing Bank or Agreement Date, which will entitle such other Recipient setting forth the amount or amounts necessary Lender to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above compensation pursuant to this Section. Any Lender claiming compensation under this Section shall be delivered furnish to the Borrower and the Administrative Agent a statement setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive absent in the absence of manifest error. The Borrower shall pay In determining such Lenderamount, the Issuing Bank or such other Recipient the amount shown as due on Lender may use any such certificate delivered by it within 10 days after its receipt of the samereasonable averaging and attribution methods.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).
Appears in 1 contract
Increased Costs Capital Adequacy. (ai) If the adoption, effectiveness or phase-in, after the date hereof, of any Change applicable law, rule or regulation, or any change therein, or any change in Law shallthe interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Bank with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency:
(iA) shall subject the Bank to any Imposition or other charge with respect to any Fixed Rate Demand Loan or the Bank's agreement to make Fixed Rate Demand Loans, or shall change the basis of taxation of payments to the Bank of the principal of or interest on any Fixed Rate Demand Loan or any other amounts due under this letter agreement in respect of the Fixed Rate Demand Loans or the Bank's agreement to make Fixed Rate Demand Loans (except for changes in the rate of tax on the over-all net income of the Bank); or
(B) shall impose, modify or deem applicable any reserve, special deposit, compulsory loan, deposit insurance charge or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System, but excluding, with respect to any Fixed Rate Demand Loan, any such requirement already included in the applicable Reserve Rate) against assets of, deposits with or for the account of of, or credit extended by any Lender by, the Bank or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) shall impose on any Lender or the Issuing Bank or on the London interbank market or other applicable interbank market any other condition, cost condition affecting any Fixed Rate Demand Loans or expense (other than Taxes) affecting this Agreement or the Bank's agreement to make Fixed Rate Demand Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be is to increase the cost to such Lender, the Issuing Bank or such other Recipient of making or maintaining any Fixed Rate Demand Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by the Bank under this letter agreement or under the Demand Note with respect to any Fixed Rate Demand Loan by an amount deemed by the Bank to be material, then (A) the Bank shall promptly after its determination of such Lenderoccurrence deliver a Bank Certificate with respect thereto to the Borrower; and (B) promptly upon demand by the Bank and receipt of such Bank Certificate from the Bank with respect thereto, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will shall pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will the Bank certifies to be necessary to compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred increased cost or reduction sufferedin amount received or receivable.
(bii) If any Lender or the Issuing Bank shall have determined that the adoption, effectiveness or phase-in after the date hereof of any Change applicable law, rule or regulation regarding capital requirements for banks or bank holding companies, or any change therein after the date hereof, or any change after the date hereof in Law the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Bank with any request or directive of such entity regarding capital adequacy (whether or liquidity requirements not having the force of law) has or would have the effect of reducing the rate of return on such Lender’s the Bank's capital with respect to any Demand Loan (whether or not then subject to any Fixed Rate) or any letter of credit and/or with respect to the Issuing Bank’s capital or on the capital 's agreements hereunder to make Demand Loans and/or issue letters of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto credit to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s 's policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy immediately before such adoption, effectiveness, phase-in, change or liquiditycompliance and assuming that the Bank's capital was then fully utilized) then from time by any amount deemed by the Bank to time be material: (A) the Bank shall promptly after its determination of such occurrence deliver a Bank Certificate with respect thereto to the Borrower; and (B) the Borrower shall pay to the Bank as an additional fee from time to time on demand such Lender or the Issuing Bank, amount as the case may beBank certifies to be the amount that will compensate it for such reduction.
(iii) A Bank Certificate of the Bank claiming compensation under this (S)1.7 shall be conclusive in the absence of manifest error. Such certificate shall set forth the nature and date of the occurrence giving rise to such compensation, such the additional amount or amounts as will compensate to be paid to the Bank hereunder and the method by which such Lenderamounts are determined. In determining any such amount, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for may use any such reduction sufferedreasonable averaging and attribution methods.
(civ) A certificate of a Lender, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay No failure on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 on any one occasion shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s its right to demand such compensation; provided that compensation on any other occasion and no failure on the part of the Bank to deliver any Bank Certificate in a timely manner shall in any way reduce any obligation of the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor under this (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)S)1.7.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If If, after the Agreement Date, the adoption of any Change Applicable Law or any change in any Applicable Law shallor any change in the interpretation or administration thereof by any Governmental Authority or compliance by any Lender (or its Lending Office) with any request or directive (whether or not having the force of law) of any such Governmental Authority:
(i) shall subject such Lender (or its Lending Office) to any tax, duty, or other charge with respect to any LIBOR Loans, such Lender's Note, or the obligation of such Lender to make LIBOR Loans, or change the basis of taxation of any amounts payable to such Lender (or its Lending Office) under this Agreement or such Lender's Note in respect of any LIBOR Loans (other than taxes imposed on the overall net income of such Lender by the United States or any State thereof or any other jurisdiction in which such Lender has an office);
(ii) shall impose, modify modify, or deem applicable any reserve, special deposit, compulsory loanassessment, insurance charge or similar requirement against assets of, deposits with or for (other than the account Reserve Requirement utilized in the determination of or credit extended by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient relating to any Taxes (extensions of credit or other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitmentsassets of, or other obligations, any deposits with or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other conditioncommitments of, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender (or any Letter its Lending Office), including the Commitment of Credit such Lender hereunder; or participation in any Letter of Credit; and the result of any of the foregoing shall be is to increase the cost to such LenderLender (or its Lending Office) of making, the Issuing Bank or such other Recipient of making Converting into, Continuing, or maintaining any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit LIBOR Loans or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank Lender (or its Lending Office) under this Agreement or such other Recipient hereunder (whether of principalLender's Note with respect to any LIBOR Loans, interest or otherwise) then the Borrower will shall pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon Lender on demand such additional amount or amounts as will compensate such LenderLender for such increased cost or reduction. If any Lender requests compensation by the Borrower under this Section 5.17., the Issuing Bank Borrower may, by notice to such Lender (with a copy to the Administrative Agent), suspend the obligation of such Lender to make or Continue LIBOR Loans or to Convert Base Rate Loans into LIBOR Loans, until the event or condition giving rise to such other Recipient, as request ceases to be in effect (in which case the case may be, for provisions of Section 2.10. shall be applicable); provided that such additional costs incurred or reduction sufferedsuspension shall not affect the right of such Lender to receive the compensation so requested.
(b) If If, after the Agreement Date, any Lender or the Issuing Bank shall have determined that the adoption of any Change in Applicable Law regarding capital adequacy or liquidity requirements any change therein or in the interpretation or administration thereof by any Governmental Authority, or any request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, has or would have the effect of increasing the amount of capital required to be maintained by such Lender or any corporation controlling such Lender, and that increase has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s Lender or the Issuing Bank’s holding company, if any, any corporation controlling such Lender as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Lender's obligations hereunder to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company corporation could have achieved but for such Change in Law adoption, change, request, or directive (taking into consideration such Lender’s or the Issuing Bank’s its policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) adequacy), then from time to time upon demand the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or Lender for such Lender’s or the Issuing Bank’s holding company for any such reduction sufferedreduction.
(c) A certificate Each Lender shall promptly notify the Borrower and the Administrative Agent of a Lenderany event of which it has knowledge, occurring after the Issuing Bank or Agreement Date, which will entitle such other Recipient setting forth the amount or amounts necessary Lender to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above compensation pursuant to this Section. Any Lender claiming compensation under this Section shall be delivered furnish to the Borrower and the Administrative Agent a statement setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder and the basis therefor which shall be conclusive absent manifest in the absence of error. The Borrower shall pay In determining such Lenderamount, the Issuing Bank or such other Recipient the amount shown as due on Lender may use any such certificate delivered by it within 10 days after its receipt of the samereasonable averaging and attribution methods.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).
Appears in 1 contract
Samples: Credit Agreement (Asa Holdings Inc)
Increased Costs Capital Adequacy. (a) If the Issuing Bank or any Change Lender determines that due to either (x) the introduction of any Requirement of Law, including any Capital Adequacy Regulation, or any change in any Requirement of Law shallor in the interpretation thereof (including those relating to reserves, special deposits, the basis of taxation, capital adequacy or Eurocurrency Liabilities or any other form of banking or monetary requirements or controls) or (y) compliance therewith by the Issuing Bank or any Lender:
(i) imposethe cost to the Issuing Bank or such Lender of maintaining its Commitment or maintaining the Letter of Credit or maintaining the Standby L/Cs or making or maintaining its Loans or its participation in the Letter of Credit Facility or Standby L/C Facility is increased;
(ii) the Issuing Bank or such Lender incurs a cost or suffers a reduction in yield (including the cost of, modify or deem applicable any reduction in yield arising from, complying with such taxation, reserve, special deposit, compulsory loancash ratio, insurance charge liquidity, capital adequacy, Eurocurrency Liabilities or similar other requirement against assets ofor control as aforesaid) as a result of its having agreed to issue the Letter of Credit, deposits with or for the account of or credit extended by any Lender or the Issuing Bank (except any such reserve requirement which is reflected to participate in the Adjusted LIBO Rate);
(ii) subject any Recipient Letter of Credit Facility, to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described issue the Standby L/Cs or to participate in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on Standby L/C Facility or to give effect to its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable theretoobligations contemplated hereunder; or
(iii) impose the Issuing Bank or such Lender makes any additional payment or suffers a reduction in yield or forgoes any interest or other return on or calculated by reference to any amount received or receivable by it hereunder or calculated by reference to the amount of its Loans, its issuance of the Letter of Credit or its participation in the Letter of Credit Facility, its issuance of Standby L/Cs, or participation in the Standby L/C Facility or its Commitment; then and in each such case:
(A) the Issuing Bank or such Lender (an "Affected Lender") shall notify the Issuer through the Administrative Agent in writing of such event promptly upon its becoming aware of the event entitling it to make a claim; provided, however, that the failure to give such notice shall not affect the rights of any Affected Lender under this Section 5.10(a); and
(B) upon demand from time to time by such Affected Lender through the Administrative Agent, the Issuer shall pay to the Administrative Agent for the account of such Affected Lender such amount as shall compensate such Affected Lender for such increased cost, reduction in yield, or shortfall in return, additional payment or forgone interest or other return. The certificate of such Affected Lender specifying the amount of such compensation shall be conclusive except in the case of manifest error.
(b) The Issuing Bank and each Lender agree that, upon the occurrence of any event giving rise to the operation of paragraph (a) above as to it, it will, if so requested by the Issuer, use its commercially reasonable efforts to avoid or minimize the consequences of such event; provided, however, that such action shall not, in the judgment of the Issuing Bank or such Lender, as the case may be, be illegal or economically or otherwise disadvantageous to it.
(c) It is understood that paragraph (a) above does not apply to the introduction of or any increase in the income or franchise taxes of the Issuing Bank, the Administrative Agent or any Lender levied by any jurisdiction (or political subdivision or taxing authority thereof) under the laws of which the Issuing Bank, the Administrative Agent or any Lender is organized or in which a Lending Office or the principal place of business of the Issuing Bank, the Administrative Agent or such Lender is located or where the Administrative Agent performs its functions as Administrative Agent or as are imposed on the Lender, the Issuing Bank or the London interbank market Administrative Agent (as the case may be) as a result of a present or former connection between the Lender, the Issuing Bank or the Administrative Agent and the jurisdiction of the Governmental Authority imposing such tax or any other condition, cost political subdivision or expense taxing authority thereof or therein (other than Taxes) affecting this Agreement or Loans made by any such Lender or any Letter of Credit or participation in any Letter of Credit; and connection arising solely from the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient of making Administrative Agent having executed, delivered or maintaining any Loan performed its obligations or to increase the cost to any Lenderreceived a payment under, or enforced, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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 thereofTransaction Documents).
Appears in 1 contract
Samples: Reimbursement and Credit Agreement (Cemex Sa De Cv)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
If, after the date hereof due to either (i) imposethe introduction of or any change in or to the interpretation of any law or regulation by the governmental authority that promulgated or administers compliance with such law or regulation (other than laws or regulations with respect to income taxes or any change by way of imposition or increase of reserve requirements included in the Eurodollar Reserve Percentage) or (ii) the compliance with any guideline or request from any central bank or other governmental authority or similar agency (whether or not having the force of law), modify and taking into account the obligations of the Liquidity Providers under the Liquidity Agreement and otherwise in connection with EagleFunding's asset-supported financing business, any reserve or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets ofshall be imposed, deposits with modified or for the account deemed applicable or, any basis of taxation shall be changed or credit extended by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing condition shall be to imposed, and there shall be any increase in the cost to such LenderEagleFunding (either directly or indirectly through any increase in the costs to the Liquidity Providers) of making, the Issuing Bank or such other Recipient of making funding, or maintaining any Loan Receivables Purchases or to increase in the cost to any LenderEagleFunding of agreeing to make, fund, or maintain Receivables Purchases (including the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount reduction of any sum received or receivable by such LenderReceivable hereunder), the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will pay Seller shall from time to such Lender, the Issuing Bank or such other Recipient, as the case may betime, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.by EagleFunding by
(b) If EagleFunding or any Lender Liquidity Provider determines that compliance with any law or regulation or any guideline or request or any written interpretation from any central bank or other governmental authority or similar agency (whether or not having the Issuing Bank shall have determined that any Change in Law regarding force of law) which is introduced, implemented or received by EagleFunding or such Liquidity Provider after the date hereof, affects or would affect capital adequacy or liquidity requirements the amount of capital required or expected to be maintained by EagleFunding or such Liquidity Provider or any corporation controlling EagleFunding or such Liquidity Provider and that the amount of such capital is increased by or based upon the existence of this EagleFunding Purchase Agreement or upon the Advances or such Liquidity Provider's commitment to lend under the Liquidity Agreement and other commitments of that type, or has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding companycapital, if anythen, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased upon demand by such Lender pursuant hereto or the Letters of Credit issued EagleFunding by the Issuing Bank pursuant hereto submission of the certificate described below, the Seller shall pay to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) then EagleFunding, from time to time as specified by EagleFunding, additional amounts sufficient to compensate EagleFunding or such corporation in the Borrower shall pay light of such circumstances, to the extent that EagleFunding reasonably determines such Lender increase in capital to be allocable to the Receivables Purchases or the Issuing Bankexistence of this EagleFunding Purchase Agreement or to the extent that EagleFunding owes compensation to a Liquidity Provider in respect of or on account of such events. A certificate setting forth in reasonable detail such amounts submitted to the Seller by EagleFunding shall be conclusive and binding for all purposes, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction sufferedabsent manifest error.
(c) A certificate of a Lender, In the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due event that EagleFunding requests compensation for increased costs on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part behalf of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to Liquidity Provider under this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to 2.08 and such increased costs or reductions, and of such Lender’s, are not being requested by the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except thatLiquidity Providers generally or, if only one Liquidity Provider exists, by EagleFunding's liquidity providers for similar transactions, then EagleFunding shall, promptly following identification by the Change Seller of an "Eligible Assignee" (as defined in Law giving rise the Liquidity Agreement) willing to accept such commitment, cause the Liquidity Provider requesting such increased costs or reductions is retroactiveto assign its outstanding Advances and commitments under the Liquidity Agreement to such Eligible Assignee, then all as more particularly described in Section 8.06(g) of the nine-month period referred to above shall be extended to include the period of retroactive effect thereof)Liquidity Agreement.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by any by, the Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO RateTerm SOFR);
(ii) subject any Recipient the Lender to any Taxes (other than (A) Indemnified TaxesTax of any kind whatsoever with respect to this Agreement, (B) Taxes described in clauses (b) through (d) any Letter of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitmentsCredit or any SOFR Loan made by it, or other obligationschange the basis of taxation of any payments to the Lender in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 2.17 and the imposition of, or its depositsany change to, reserves, other liabilities or capital attributable theretothe rate of any Excluded Tax payable by the Lender); or
(iii) impose on any the Lender or the Issuing Bank or the London applicable interbank market any other condition, cost or expense (other than Taxes) condition affecting this Agreement or SOFR Loans made by such the Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any SOFR Loan (or of maintaining its obligation to make SOFR Loans) or to increase the cost to any Lender, the Issuing Bank or such other Recipient of Lender issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the any amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient Lender hereunder (whether of principal, interest or otherwise) ), then the Borrower will BorrowersBorrower shall pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, it for such additional costs cost incurred or reduction suffered.
(b) If any the Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such the Lender’s or the Issuing Bank’s capital or on the capital of such the Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by it or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto it, to a level below that which such the Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company reasonably could have achieved but for such Change in Law (taking into consideration such the Lender’s or the Issuing Bank’s policies and the policies of such the Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) adequacy), then from time to time following receipt of the Borrower certificate referred to in subsection (c) of this Section, the BorrowersBorrower shall pay to such the Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank it or such Lender’s or the Issuing Bank’s its holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank it or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph subsection (a) or (b) above of this Section shall be delivered to the Borrower Agent and shall be conclusive absent manifest errorrebuttably presumed to be correct. Each such certificate shall contain a representation and warranty on the part of the Lender to the effect that the Lender has complied with its obligations pursuant to Section 2.21 hereof in an effort to eliminate or reduce such amount. The Borrower BorrowersBorrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the samethereof.
(d) Failure or delay on by the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 shall will not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s its right to demand such compensation; provided that the Borrower shall BorrowersBorrower will not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above Lender pursuant to this Section for any increased costs cost or reduction incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, one year before it notifies the Borrower Agent of the Change in Law giving rise to such increased costs cost or reductions, reduction and of such Lender’s, the Issuing Bank’s or other such Recipient’s its intention to claim compensation therefor (except thattherefor. However, if the Change in Law giving rise to such increased costs cost or reductions reduction is retroactive, then the nine-month one year period referred to above shall will be extended to include the period of retroactive effect thereof).
Appears in 1 contract
Samples: Credit Agreement (James River Group Holdings, Ltd.)
Increased Costs Capital Adequacy. (a) 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 account of of, or credit extended by or participated in by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);Lender,
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Term Loans made by such Lender or any Letter of Credit or participation in any Letter of CreditLender; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank Lender or such other Recipient of making or maintaining any Term Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank Lender or such other Recipient hereunder (whether of principal, interest or otherwiseany other amount) then then, upon request of such Lender or other Recipient, the Borrower will pay to such Lender, the Issuing Bank Lender or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient Lender or the holding company, as applicablethe case may be, as specified in paragraph clause (a) or (b) above shall be of this Section and delivered to the Borrower and Borrower, shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 ten (10) days after its receipt of the samethereof.
(dc) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above Lender pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, deposit or similar requirement (including any compulsory loanloan requirement, insurance charge or similar requirement other assessment) against assets of, deposits with or for the account of of, or credit extended by by, any Lender (except any such reserve requirement reflected in the Adjusted Eurodollar Rate) or the Issuing Bank;
(ii) impose on any Lender or the Issuing Bank (except or the London interbank market any other condition, cost or expense affecting this Agreement or Loans made by such reserve requirement which is reflected in the Adjusted LIBO Rate)Lender or any Letter of Credit or participation therein;
(iiiii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, Taxes and (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making or maintaining any Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender, the Issuing Bank or such other Recipient of making or maintaining any Loan or to increase the cost to any Lenderparticipating in, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) ), then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit purchased by held by, such Lender pursuant hereto Lender, or the Letters of Credit issued by the Issuing Bank pursuant hereto Bank, to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) adequacy), then from time to time the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender, Lender or the Issuing Bank or such other Recipient setting forth in reasonable detail the amount or amounts necessary to compensate such Lender, Lender or the Issuing Bank or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph (a) or (b) above of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, Lender or the Issuing Bank or such other Recipient Bank, as the case may be, the amount shown as due on any such certificate delivered by it within 10 15 days after its receipt of the samethereof.
(d) Failure or delay on the part of any Lender, Lender or the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, ’s or the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, a Lender or the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered incurred more than nine months 270 days prior to the date that such Lender, Lender or the Issuing Bank or other RecipientBank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, ’s or the Issuing Bank’s or other such Recipient’s Banks intention to claim compensation therefor (except therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine270-month day period referred to above shall be extended to include the period of retroactive effect thereof).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Cypress Semiconductor Corp /De/)
Increased Costs Capital Adequacy. If the Lender determines at any time that its Return has been reduced as a result of any Rule Change, or if the Lender has been notified by any other Related Lender that such Related Lender's Return has been reduced as a result of any Rule Change, the Lender may so notify the Borrowing Agent and require the Borrowers, beginning fifteen (a15) If days after such notice, to pay it the amount necessary to restore its and/or such other Related Lender's Return to what it would have been had there been no Rule Change. For purposes of this Section 2.5. "Capital Adequacy Rule" means any Change law, rule, regulation, guideline, directive, requirement or request regarding capital adequacy, or the interpretation or administration thereof by any governmental or regulatory authority, central bank or comparable agency, whether or not having the force of law, that applies to any Related Lender, including rules requiring financial institutions to maintain total capital in Law shall:
amounts based upon percentages of outstanding loans, binding loan commitments and letters of credit. "Reserve Rule" means Regulation D of the Board of Governors of the Federal Reserve System and any other law, rule, regulation, guideline, directive, requirement or request regarding (iA) imposetaxes, modify duties or deem applicable any reserveother charges or exemptions with respect to Advances, and (B) reserves imposed by the Board of Governors of the Federal Reserve System, special deposit, compulsory loan, insurance charge deposits or similar requirement requirements against assets of, deposits with or for the account of, or credit extended by, any Related Lender, and any other condition affecting the Lender's making, maintaining or funding of Advances, or the interpretation or administration thereof by any governmental or regulatory authority, central bank or comparable agency, whether or not having the force of law, that applies to any Related Lender. "L/C Rule" means any law, rule, regulation, guideline, directive, requirement or request regarding letters of credit, or the interpretation or administration thereof by any governmental or regulatory authority, central bank or comparable agency, whether or not having the force of law, that applies to any Related Lender, including those that impose taxes, duties or other similar charges, or mandate reserves, special deposits or similar requirements against assets of, deposits with or for the account of, or credit extended by any Related Lender, on letters of credit. "Related Lender" includes (but is not limited to) the Lender, any parent of the Lender, any assignee of any interest of the Lender or the Issuing Bank (except hereunder and any such reserve requirement which is reflected participant in the Adjusted LIBO Rate);
Credit Facility. "Return", for any period, means the percentage determined by dividing (i) the sum of interest and ongoing fees earned by the Lender under this Agreement during such period, by (ii) subject any Recipient the average capital and reserves the Lender is required to any Taxes (other than (A) Indemnified Taxesmaintain during such period as a result of its being a party to this Agreement, (B) Taxes described in clauses (b) through (d) as determined by the Lender based upon its total capital and reserve requirements and a reasonable attribution formula that takes account of the definition of Excluded Taxes Capital Adequacy Rules, L/C Rules and (C) Connection Income Taxes) on its loansReserve Rules then in effect, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient of making or maintaining any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient costs of issuing or maintaining any Advance or Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum and amounts received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of under this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company Notes with respect to any Advance or Letter of Credit. Return may be calculated for each calendar quarter and for the shorter period between the end of a calendar quarter and the date of termination in whole of this Agreement. "Rule Change" means any change in any Capital Adequacy Rule, L/C Rule or Reserve Rule occurring after the date of this Agreement, or any change in the interpretation or administration thereof by any governmental or regulatory authority, but the term does not include any changes that at the Funding Date are scheduled to take place under the existing Capital Adequacy Rules, L/C Rules or Reserve Rules or any increases in the capital adequacy or liquidity) then from time that any Related Lender is required to time maintain to the Borrower extent that the increases are required due to a regulatory authority's assessment of such Related Lender's financial condition. The initial notice sent by the Lender shall pay be sent as promptly as practicable after the Lender learns that its and/or any other Related Lender's Return has been reduced, shall include a demand for payment of the amount necessary to restore the Lender's and/or such Lender or other Related Lender's Return for the Issuing Bankquarter in which the notice is sent, as and shall state in reasonable detail the case may be, cause for the reduction in its and/or such additional other Related Lender's Return and its and/or such other Related Lender's calculation of the amount or amounts as will compensate of such Lenderreduction. Thereafter, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of Lender may send a Lender, the Issuing Bank or such other Recipient new notice during each calendar quarter setting forth the calculation of the reduced Return for that quarter and including a demand for payment of the amount or amounts necessary to compensate restore its and/or any other Related Lender's Return for that quarter. The Lender's calculation in any such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and notice shall be conclusive and binding absent manifest demonstrable error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).
Appears in 1 contract
Samples: Credit and Security Agreement (Colonial Commercial Corp)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate)Term SOFR) or any Letter of Credit Issuer;
(ii) subject any Recipient Lender or any Letter of Credit Issuer to any Taxes (other than (A) Indemnified TaxesTax of any kind whatsoever with respect to this Agreement, (B) Taxes described in clauses (b) through (d) any Letter of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitmentsCredit or any SOFR Loan made by it, or other obligationschange the basis of taxation of any payments to such Lender or such Letter of Credit Issuer in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 2.17 and the imposition of, or its depositsany change to, reserves, other liabilities the rate of any Excluded Tax payable by such Lender or capital attributable theretosuch Letter of Credit Issuer); or
(iii) impose on any Lender or the Issuing Bank any Letter of Credit Issuer or the London applicable interbank market any other condition, cost or expense (other than Taxes) condition affecting this Agreement or SOFR Loans made by such Lender or any Letter of Credit or participation in any Letter of Credittherein; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any SOFR Loan (or of maintaining its obligation to make SOFR Loans) or to increase the cost to any Lender, the Issuing Bank such Lender or such other Recipient Letter of Credit Issuer of participating in, issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the any amount of any sum received or receivable by such Lender, the Issuing Bank Lender or such other Recipient Letter of Credit Issuer hereunder (whether of principal, interest or otherwise) ), then the Borrower will Borrowers shall pay to such Lender, the Issuing Bank Lender or such other RecipientLetter of Credit Issuer, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, it for such additional costs cost incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined any Letter of Credit Issuer determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Banksuch Letter of Credit Issuer’s capital or on the capital of such Lender’s or the Issuing Banksuch Letter of Credit Issuer’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit purchased by held by, such Lender pursuant hereto Lender, or the Letters of Credit issued by the Issuing Bank pursuant hereto such Letter of Credit Issuer, to a level below that which such Lender or the Issuing Bank such Letter of Credit Issuer or such Lender’s or the Issuing Banksuch Letter of Credit Issuer’s holding company reasonably could have achieved but for such Change in Law (taking into consideration such LenderXxxxxx’s or the Issuing Banksuch Letter of Credit Issuer’s policies and the policies of such LenderXxxxxx’s or the Issuing Banksuch Letter of Credit Issuer’s holding company with respect to capital adequacy or liquidity) adequacy), then from time to time following receipt of the Borrower certificate referred to in subsection (c) of this Section, the Borrowers shall pay to such Lender or the Issuing Banksuch Letter of Credit Issuer, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank it or such Lender’s or the Issuing Bank’s its holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank Lender or such other Recipient a Letter of Credit Issuer setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank it or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph subsection (a) or (b) above of this Section shall be delivered to the Borrower Agent and shall be conclusive absent manifest errorrebuttably presumed to be correct. Each such certificate shall contain a representation and warranty on the part of such Lender or Letter of Credit Issuer to the effect that such Lender or Letter of Credit Issuer has complied with its obligations pursuant to Section 2.21 hereof in an effort to eliminate or reduce such amount. The Borrower Borrowers shall pay such Lender, the Issuing Bank Lender or such other Recipient Letter of Credit Issuer, as the case may be, the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the samethereof.
(d) Failure or delay on the part by any Lender or Letter of any Lender, the Issuing Bank or other such Recipient Credit Issuer to demand compensation pursuant to this Section 2.14 shall will not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s its right to demand such compensation; provided that the Borrower shall Borrowers will not be required to compensate any Lender, the Issuing Bank a Lender or other such Recipient under paragraph (a) or (b) above a Letter of Credit Issuer pursuant to this Section for any increased costs cost or reduction incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, one year before it notifies the Borrower Agent of the Change in Law giving rise to such increased costs cost or reductions, reduction and of such Lender’s, the Issuing Bank’s or other such Recipient’s its intention to claim compensation therefor (except thattherefor. However, if the Change in Law giving rise to such increased costs cost or reductions reduction is retroactive, then the nine-month one year period referred to above shall will be extended to include the period of retroactive effect thereof.
(e) Within four (4) months following the date such certificate is furnished claiming compensation by any such Lender (an “Affected Lender”, which term shall also include a Lender making a demand under Section 2.17), the Borrowers may replace the Affected Lender pursuant to the provisions of Section 9.15.
Appears in 1 contract
Samples: Credit Agreement (James River Group Holdings, Ltd.)
Increased Costs Capital Adequacy. (a) 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 account of of, or credit extended by or participated in by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);Term Lender,
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Term Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Term Loans made by such Lender or any Letter of Credit or participation in any Letter of CreditTerm Lender; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank Term Lender or such other Recipient of making or maintaining any Term Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank Term Lender or such other Recipient hereunder (whether of principal, interest or otherwiseany other amount) then then, upon request of such Term Lender or other Recipient, the Borrower will pay to such Lender, the Issuing Bank Term Lender or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank Term Lender or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Term Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient Term Lender or the holding company, as applicablethe case may be, as specified in paragraph clause (a) or (b) above shall be of this Section and delivered to the Borrower and Borrower, shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Term Lender the amount shown as due on any such certificate delivered by it within 10 ten (10) days after its receipt of the samethereof.
(dc) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Term Lender to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Term Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above Term Lender pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Term Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Term Lender’s, the Issuing Bank’s or other such Recipient’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).
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If If, after the Agreement Date, the adoption of any Change Applicable Law or any change in any Applicable Law shallor any change in the interpretation or administration thereof by any Governmental Authority or compliance by any Lender (or its Lending Office) with any request or directive (whether or not having the force of law) of any such Governmental Authority:
(i) shall subject such Lender (or its Lending Office) to any tax, duty, or other charge with respect to any LIBOR Loans, such Lender's Note, or the obligation of such Lender to make LIBOR Loans, or change the basis of taxation of any amounts payable to such Lender (or its Lending Office) under this Agreement or such Lender's Note in respect of any LIBOR Loans (other than taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or such Lending Office);
(ii) shall impose, modify modify, or deem applicable any reserve, special deposit, compulsory loanassessment, insurance charge or similar requirement against assets of, deposits with or for (other than the account Reserve Requirement utilized in the determination of or credit extended by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient relating to any Taxes (extensions of credit or other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitmentsassets of, or other obligations, any deposits with or its deposits, reserves, other liabilities or capital attributable theretocommitments of, such Lender (or its Lending Office), including the Commitment of such Lender hereunder; or
(iii) shall impose on any such Lender (or the Issuing Bank its Lending Office) or the London interbank market any other condition, cost or expense (other than Taxes) condition affecting this Agreement or Loans made by such Lender Lender's Note or any Letter of Credit such extensions of credit or participation in any Letter of Creditliabilities or commitments; and the result of any of the foregoing shall be is to increase the cost to such LenderLender (or its Lending Office) of making, the Issuing Bank or such other Recipient of making Converting into, Continuing, or maintaining any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit LIBOR Loans or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank Lender (or its Lending Office) under this Agreement or such other Recipient hereunder (whether of principalLender's Note with respect to any LIBOR Loans, interest or otherwise) then the Borrower will shall pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon Lender on demand such additional amount or amounts as will compensate such LenderLender for such increased cost or reduction. If any Lender requests compensation by the Borrower under this Section 3.16., the Issuing Bank Borrower may, by notice to such Lender (with a copy to the Administrative Agent), suspend the obligation of such Lender to make or Continue LIBOR Loans or to Convert Base Rate Loans into LIBOR Loans, until the event or condition giving rise to such other Recipient, as request ceases to be in effect (in which case the case may be, for provisions of Section 3.16. shall be applicable); provided that such additional costs incurred or reduction sufferedsuspension shall not affect the right of such Lender to receive the compensation so requested.
(b) If If, after the Agreement Date, any Lender or the Issuing Bank shall have determined that the adoption of any Change in Applicable Law regarding capital adequacy or liquidity requirements any change therein or in the interpretation or administration thereof by any Governmental Authority, or any request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s Lender or the Issuing Bank’s holding company, if any, any corporation controlling such Lender as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Lender's obligations hereunder to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company corporation could have achieved but for such Change in Law adoption, change, request, or directive (taking into consideration such Lender’s or the Issuing Bank’s its policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) adequacy), then from time to time upon demand the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or Lender for such Lender’s or the Issuing Bank’s holding company for any such reduction sufferedreduction.
(c) A certificate Each Lender shall promptly notify the Borrower and the Administrative Agent of a Lenderany event of which it has knowledge, occurring after the Issuing Bank or Agreement Date, which will entitle such other Recipient setting forth the amount or amounts necessary Lender to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above compensation pursuant to this Section. Any Lender claiming compensation under this Section shall be delivered furnish to the Borrower and the Administrative Agent a statement setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive absent in the absence of manifest error. The Borrower shall pay In determining such Lenderamount, the Issuing Bank or such other Recipient the amount shown as due on Lender may use any such certificate delivered by it within 10 days after its receipt of the samereasonable averaging and attribution methods.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If If, after the Effective Date, Lender shall have reasonably determined in good faith that the adoption of any Change Requirement of Law regarding or applicable to the capital adequacy of Lender, or any change therein, or any change in Law shall:
(i) impose, modify the interpretation or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of or credit extended administration thereof by any Lender Governmental Authority charged with the interpretation or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitmentsadministration thereof, or other obligationscompliance by Lender with any policy, guideline, directive or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient of making or maintaining any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that any Change in Law request regarding capital adequacy or liquidity requirements of any such Governmental Authority, has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, Lender as a consequence of this Agreement the obligations or commitments of Lender in respect of all or any part of the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Loan to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law adoption, change or compliance (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s Lender or the Issuing Bank’s holding company with respect to capital adequacy immediately before such adoption, change or liquiditycompliance) by an amount reasonably deemed in good faith by Lender to be material, then Lender shall notify Borrower thereof, and Borrower shall thereupon pay to Lender from time to time as specified by Lender (in each instance) such additional amounts as shall be sufficient to compensate Lender for such reduced return, each such payment to be made by Borrower within fifteen (15) Business Days after each demand therefor by Lender. A certificate in reasonable detail, signed by an officer of Lender, describing the Borrower shall pay event(s) giving rise to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient and setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered paid to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation Lender pursuant to this Section 2.14 shall not constitute 11.7, together with a waiver good faith calculation of such Lender’samount, shall accompany any such demand and, in the Issuing Bank’s or absence of manifest error, shall be conclusive. In determining and/or calculating any such other Recipient’s right to demand such compensation; provided that the Borrower amount, Lender shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change act reasonably and in Law giving rise to such increased costs or reductionsgood faith, and of such Lender’s, the Issuing Bank’s or other such Recipient’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)will use any reasonable averaging and attribution methods.
Appears in 1 contract
Increased Costs Capital Adequacy. (ai) If any Change in Law shall:
shall (iA) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(iiB) subject any Recipient Lender to any Taxes (other than (Ax) Indemnified TaxesTaxes indemnified pursuant to Section 13.8, (By) Taxes described in clauses that are excluded from indemnification by reason of Section 13.8(g) or (bi), or (z) through (d) of the definition of Excluded Taxes and (C) any Connection Income Taxes) Taxes on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining the Term Loans (or of maintaining its obligation to make any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Term Loans) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient Lender hereunder (whether of principal, interest or otherwise) then the ), Borrower will shall pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount Uniti – Bridge Loan and Security Agreement or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(bii) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Term Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company company, as applicable, could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company company, as applicable, with respect to capital adequacy or liquidity) adequacy), then from time to time the time, Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank ’s or such Lender’s or the Issuing Bank’s holding company company, as applicable, for any such reduction suffered.
(ciii) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the Lender’s holding company, as applicablethe case may be, as specified in paragraph clauses (ai) or and (bii) above above, shall be delivered to Borrower (with a copy to the Borrower Administrative Agent) and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 ten (10) days after its receipt of the same.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensationthereof; provided that with respect to any notice given to the Borrower under this Section 3.2 the Borrower shall not be required under any obligation to compensate pay any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant amount with respect to this Section for any increased costs incurred or reductions suffered more than nine months period prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise is nine (9) months prior to such increased costs or reductionsnotice; provided, and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except thatfurther, if the Change in Law giving rise to such increased costs or reductions Increased Costs is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof). A Lender will, within a reasonable period of time after the officer of such Lender having primary responsibility for administering the Loan becomes aware of the occurrence of an event or the existence of a condition that would entitle such Lender to receive payments under this Section 3.2, to avoid or reduce any increased or additional costs or any other amounts payable by Borrowers under this Section 3.2, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (i) make, issue, fund or maintain its portion of the Term Loan through another office of such Lender, or (ii) take such other measures as such Lender may deem reasonable, if as a result thereof the circumstances which would cause the additional amounts which would otherwise be required to be paid to such Lender pursuant to this Section 3.2 to be materially reduced and if, as determined by such Lender in its reasonable discretion, the making, issuing, funding or maintaining of its portion of the Term Loan through such other office or in accordance with such other measures, as the case may be, would not otherwise adversely affect the interests of such Lender.
(iv) Failure or delay on the part of any Lender to demand compensation pursuant to this Section 3.2(a) shall not constitute a waiver of such Lender’s right to demand such compensation; provided, however, Borrower shall not be required to compensate any Lender pursuant to this Section 3.2 for any increased costs or reductions or other amounts suffered more than sixty (60) days prior to the date that such Lender notifies Borrower of the event or the existence of a condition that would entitle such Lender to receive payments under this Section 3.2. Uniti – Bridge Loan and Security Agreement
Appears in 1 contract
Samples: Bridge Loan and Security Agreement (Uniti Group Inc.)
Increased Costs Capital Adequacy. (a) If The Borrower shall pay to each Lender from time to time on demand such amounts as such Lender may determine to be reasonably necessary to compensate it or its holding company for any costs which such Lender determines are attributable to its making or maintaining Loans, issuing or maintaining Letters of Credit (or participations therein), or maintaining Commitments hereunder or its obligation to make any such Loans or issue or maintain any Letters of Credit (or participations therein) hereunder, or any reduction in any amount receivable by such Lender hereunder in respect of any such Loans, Letters of Credit Commitments or obligation, in each case resulting from any Regulatory Change in Law shall:
which: (i) imposechanges the basis of taxation of any amounts payable to such Lender under this Agreement in respect of any of such Loans, modify Letters of Credit (or deem applicable participations therein) or Commitments (other than taxes imposed on the overall net income of such Lender or of its Applicable Lending Office); or (ii) imposes or modifies any reserve, special deposit, compulsory loandeposit insurance or assessment, insurance charge minimum capital, capital ratio or similar requirement against requirements relating to any extensions of credit or other assets of, or any deposits with or for other liabilities of, such Lender or any holding company of such bank (including, without limitation, a request or requirement which affects the account of or credit extended by manner in which any Lender or the Issuing Bank (except holding company of any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient thereof allocates capital resources to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on including the Commitments and obligations of such Lender hereunder). Each Lender will notify the Borrower of any Lender or event occurring after the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting date of this Agreement or Loans made by which will entitle such Lender or any Letter of Credit or participation in any Letter of Credit; to compensation pursuant to this clause (a) as promptly as practicable after it obtains knowledge thereof and the result of any of the foregoing shall be determines to increase the cost to request such Lender, the Issuing Bank or such other Recipient of making or maintaining any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction sufferedcompensation.
(b) If any Lender or the Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or would have Without limiting the effect of reducing the rate foregoing provisions of return on this Section 2.4 (but without duplication), the Borrower shall pay to each Lender from time to time upon demand by such Lender’s Lender such amounts as the Lender may determine to be reasonably necessary to compensate such Lender for any costs which it determines are attributable to the maintenance by it or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s its holding company, if anypursuant to any law or regulation of any jurisdiction or any interpretation, as a consequence directive or request (whether or not having the force of law) of any court or governmental or monetary authority, whether in effect on the date of this Agreement or thereafter, of capital in respect of its Loans or any Letters of Credit, its obligation to make the Loans made Loans, or participations issue or participate in any Letters of Credit purchased by hereunder (such compensation to include, without limitation, an amount equal to any reduction in return on assets or equity of such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto its holding company to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company it could have achieved but for such Change in Law law, regulation, interpretation, directive or request). The Lender will notify the Borrower with a copy to the Agent) if it is entitled to compensation pursuant to this clause (taking into consideration b) as promptly as practicable after it determines to request such Lender’s or the Issuing Bank’s policies and the policies compensation.
(c) Each notice delivered by any Lender pursuant to this Section 2.4 shall contain a statement of such Lender’s or the Issuing Bank’s holding company with respect Lender as to capital adequacy or liquidity) then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, any such additional amount or amounts as will compensate such Lender(including calculations thereof in reasonable detail) which shall, in the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate absence of a Lendermanifest error, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the samematters stated therein and be binding upon the Borrower. In determining such amount, any Lender may use any method of averaging and attribution that it in good faith shall deem applicable.
(d) Failure or delay on Without prejudice to the part survival of any Lenderother agreement of the Borrower hereunder or under any other Loan Document, the Issuing Bank or other such Recipient to demand compensation pursuant to agreements and obligations of the Borrower contained in this Section 2.14 2.4 shall not constitute survive the payment in full of principal, interest and other amounts payable hereunder and under the other Loan Documents for a waiver period of such Lender’s, one year after the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that date of the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph last payment.
(ae) or (b) above pursuant to Notwithstanding anything in this Section for any increased costs incurred or reductions suffered more than nine months prior 2.4 to the date contrary, to the extent that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies notice is given by any Lender to the Borrower of any amount owing to such Lender under this Section 2.4 more than 180 days after the Change in Law occurrence of the event giving rise to such increased costs obligation, such Lender shall not be entitled to compensation under this Section 2.4 for any amounts incurred or reductionsaccruing 180 days prior to the giving of such notice to the Borrower.
(f) Each Lender agrees that, and upon the occurrence of any event giving rise to a claim for any amount owing to such Lender under this Section 2.4, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender’s) to designate another Applicable Lending Office, the Issuing Bank’s provided that such designation is made on terms that such Lender suffers no economic, legal, regulatory or other such Recipient’s intention to claim compensation therefor (except thatdisadvantage, if with the Change in Law giving object of avoiding the consequence which gave 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)claim for any amount owing under this Section 2.4.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by any by, Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Applicable Interest Rate);; or
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) condition affecting this Loan Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Creditthe Loan; and the result of any of the foregoing shall be to increase such Change in Law increases the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any the Loan (or of maintaining its obligation to increase make the cost to any Lender, the Issuing Bank Loan) or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce reduces the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder Lender under this Loan Agreement (whether of principal, interest or otherwise) ), then the Borrower will Borrowers shall pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Loan Agreement or the Loans Loan made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company company, as applicable, could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company company, as applicable, with respect to capital adequacy or liquidity) adequacy), then from time to time the Borrower Borrowers shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company company, as applicable, for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender or Lender, the Issuing Bank or such other Recipient or the ’s holding company, as applicable, as specified in paragraph (aunder Sections 2.10(a) or (b2.10(b) above and evidence of the Change in Law, shall be delivered to the Borrower Borrowers and shall be conclusive absent manifest error. The Borrower Subject to Section 2.10(f), Borrowers shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 thirty (30) days after its receipt of the samereceipt.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 2.10 shall not constitute a waiver of such waive Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower Borrowers shall not be required to compensate any Lender, the Issuing Bank or other such Recipient Lender under paragraph (a) or (b) above pursuant to this Section 2.10 for any increased costs incurred or reductions suffered incurred more than nine months 180 days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Lender notifies the Borrower Borrowers of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except for such increased costs or reduction; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the ninesuch 180-month day period referred to above shall will be extended to include the period of such retroactive effect thereofeffect.
(e) Notwithstanding anything to the contrary in this Loan Agreement, the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith shall be deemed to be a Change in Law and/or a change in capital adequacy requirements, as applicable, regardless of the date enacted, adopted or issued.
(f) Notwithstanding anything to the contrary in this Loan Agreement, if any Change in Law affects Lender and results in Borrowers having to pay additional amounts to Lender to compensate Lender for such additional costs incurred or reduction suffered, Borrowers shall have the right to prepay the Loan pursuant to Section 2.5 (without the obligation to pay the Lockout Termination Fee, even if such prepayment is made prior to the Lockout Expiration Date). Such payment shall be made upon not more than 150 days’ notice on the Payment Date specified in any Prepayment Notice given to Lender. If Borrowers fail to make the prepayment on the Prepayment Date specified in the Prepayment Notice, Borrowers shall pay to Lender: (i) interest at the Default Interest Rate from the scheduled date of prepayment through the later to occur of the next occurring scheduled Payment Date or the date when the Loan is prepaid, (ii) such additional amounts to compensate Lender for the additional costs incurred or reduction suffered from the Change in Law from inception through the date of prepayment of the Loan; and (iii) such additional expenses of Lender, if any, attributable to such prepayment (and for avoidance of doubt, such reimbursement of additional expenses shall specifically exclude any special or punitive damages).
Appears in 1 contract
Samples: Term Loan and Security Agreement (Summit Healthcare REIT, Inc)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, assessment, fee, tax, insurance charge, liquidity or similar requirement (including any compulsory loanloan requirement, insurance charge or similar requirement other assessment) against assets of, deposits with or for the account of of, or credit extended by by, any of the Administrative Agent, any Lender or the Issuing Bank any Affiliate, participant, successor or assign thereof (except any such reserve requirement each of which is reflected in the Adjusted LIBO Rateshall be an “Affected Party”);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank Affected Party or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit Advances or participation therein or the obligation or right of any Lender to make Advances hereunder;
(iii) change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(iv) change the rate for, or the manner in any Letter of Creditwhich 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 Lender, the Issuing Bank Affected Party of funding or such other Recipient of making or maintaining any Loan 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 any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Affected Party or to reduce the amount of any sum received or receivable by such LenderAffected Party, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) otherwise or to require any payment calculated by reference to the amount of interest or loans received or held by such Affected Party, then on each Payment Date pursuant to Section 2.04 the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Affected Party such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Affected Party for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined Affected Party determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing BankAffected Party’s capital or on the capital of such Lender’s or the Issuing BankAffected Party’s holding company, if any, as a consequence of this Agreement or the Loans Advances made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Affected Party to a level below that which such Lender Affected Party or the Issuing Bank or such Lender’s or the Issuing BankAffected Party’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing BankAffected Party’s policies and the policies of such Lender’s or the Issuing BankAffected Party’s holding company with respect to capital adequacy or and liquidity) ), then from time to time on each Payment Date pursuant to Section 2.04 the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, Affected Party such additional amount or amounts as will compensate such Lender, the Issuing Bank Affected Party or such Lender’s or the Issuing BankAffected Party’s holding company for any such reduction suffered.
(c) A certificate of a Lender, an Affected Party providing an explanation of the Issuing Bank or such other Recipient applicable Change in Law and setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Affected Party or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph clause (a) or (b) above of this Section 2.10 shall be delivered to the Borrower and shall be conclusive absent manifest error. In determining any amount provided for in this Section 2.10, the Affected Party may use any reasonable averaging and attribution methods. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Affected Party the amount shown as due on any such certificate delivered by it within 10 days after its on the Payment Date following receipt of the samethereof.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Affected Party to demand compensation pursuant to this Section 2.14 2.10 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipientany Affected Party’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above Affected Party pursuant to this Section 2.10 for any increased costs incurred or reductions suffered incurred more than nine months one hundred and eighty (180) days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Affected Party notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such RecipientAffected Party’s intention to claim compensation therefor (except therefor; provided, further, that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month one hundred and eighty (180)-day period referred to above shall be extended to include the period of retroactive effect thereof).
(e) In the event that any Affected Party shall incur any loss or expense (including any loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Affected Party to make any purchase or loan or maintain any purchase or loan) as a result of any Advance not being made in accordance with a request therefor under Section 2.02, then, on the Payment Date following written notice from such Affected Party to the Borrower, the Borrower shall pay to such Affected Party, the amount of such loss or expense. Such written notice (which shall include calculations in reasonable detail) shall, in the absence of manifest error, be conclusive and binding upon the Borrower.
Appears in 1 contract
Samples: Loan and Servicing Agreement (HPS Corporate Lending Fund)
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, deposit or similar requirement (including any compulsory loanloan requirement, insurance charge or similar requirement other assessment) against assets of, deposits with or for the account of of, or credit extended by by, any Lender (except any such reserve requirement reflected in the Adjusted Eurodollar Rate) or the Issuing Bank;
(ii) impose on any Lender or the Issuing Bank (except or the London interbank market any other condition, cost or expense affecting this Agreement or Loans made by such reserve requirement which is reflected in the Adjusted LIBO Rate)Lender or any Letter of Credit or participation therein;
(iiiii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses clause (b) through (dc) of the definition of Excluded Taxes and (C) Other Connection Income Taxes that are imposed on or measured by net income, however denominated, or that are franchise Taxes or branch profits Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making or maintaining any Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender, the Issuing Bank or such other Recipient of making or maintaining any Loan or to increase the cost to any Lenderparticipating in, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) ), then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit purchased by held by, such Lender pursuant hereto Lender, or the Letters of Credit issued by the Issuing Bank pursuant hereto Bank, to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) adequacy), then from time to time the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender, Lender or the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, Lender or the Issuing Bank or such other Recipient or the its holding company, as applicablethe case may be, as specified in paragraph (a) or (b) above of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, Lender or the Issuing Bank or such other Recipient Bank, as the case may be, the amount shown as due on any such certificate delivered by it within 10 15 days after its receipt of the samethereof.
(d) Failure or delay on the part of any Lender, Lender or the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, ’s or the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, a Lender or the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered incurred more than nine months 270 days prior to the date that such Lender, Lender or the Issuing Bank or other RecipientBank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, ’s or the Issuing Bank’s or other such Recipient’s Banks intention to claim compensation therefor (except therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine270-month day period referred to above shall be extended to include the period of retroactive effect thereof).
Appears in 1 contract
Increased Costs Capital Adequacy. (a) 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 account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO RateLIBOR);
(ii) subject the Administrative Agent or any Recipient Lender to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Excluded Taxes) on its loans, loan principal, letters of credit, commitments, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (in each case, other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of CreditLender; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Loan (or of maintaining its obligation to increase the cost to make any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Loan) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder Lender (whether of principal, interest or otherwise) ), then the Borrower will pay to such Lender, the Issuing Bank or upon written request of such other RecipientLender, as the case may be, upon demand such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Lender, to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) ), then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank Lender or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered. Notwithstanding any other provision herein, no Lender shall demand compensation pursuant to this Section 2.16(b) as a result of a Change in Law resulting from Basel III or the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act if it shall not at the time be the general policy or practice of such Lender to demand such compensation from similarly situated borrowers (to the extent that, with respect to such Change in Law, such Lender has the right to do so under its credit facilities with similarly situated borrowers).
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the its holding company, as applicable, as specified in paragraph (a) or (b) above of this Section 2.16 shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 days Business Days after its receipt of the samethereof.
(d) Promptly after any Lender has determined that it will make a request for increased compensation pursuant to this Section 2.16, such Lender shall notify the Borrower. Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 2.16 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section 2.16 for any increased costs incurred or reductions suffered incurred more than nine months 90 days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except thattherefor; provided, further, that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine90-month day period referred to above shall be extended to include the period of retroactive effect thereof).
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If If, after the Agreement Date, the adoption of any Change Applicable Law or any change in any Applicable Law shallor any change in the interpretation or administration thereof by any Governmental Authority or compliance by any Lender (or its Lending Office) with any request or directive (whether or not having the force of law) of any such Governmental Authority:
(i) shall subject such Lender (or its Lending Office) to any tax, duty, or other charge with respect to any LIBOR Loans, such Lender's Note, or the obligation of such Lender to make LIBOR Loans, or change the basis of taxation of any amounts payable to such Lender (or its Lending Office) under this Agreement or such Lender's Note in respect of any LIBOR Loans (other than taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or such Lending Office);
(ii) shall impose, modify modify, or deem applicable any reserve, special deposit, compulsory loanassessment, insurance charge or similar requirement against assets of, deposits with or for (other than the account Reserve Requirement utilized in the determination of or credit extended by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient relating to any Taxes (extensions of credit or other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitmentsassets of, or other obligations, any deposits with or its deposits, reserves, other liabilities or capital attributable theretocommitments of, such Lender (or its Lending Office), including the Commitment of such Lender hereunder; or
(iii) shall impose on any such Lender (or the Issuing Bank its Lending Office) or the London interbank market any other condition, cost or expense (other than Taxes) condition affecting this Agreement or Loans made by such Lender Lender's Note or any Letter of Credit such extensions of credit or participation in any Letter of Creditliabilities or commitments; and the result of any of the foregoing shall be is to increase the cost to such LenderLender (or its Lending Office) of making, the Issuing Bank or such other Recipient of making Converting into, Continuing, or maintaining any Loan or to increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit LIBOR Loans or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank Lender (or its Lending Office) under this Agreement or such other Recipient hereunder (whether of principalLender's Note with respect to any LIBOR Loans, interest or otherwise) then the Borrower will shall pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon Lender on demand such additional amount or amounts as will compensate such LenderLender for such increased cost or reduction. If any Lender requests compensation by the Borrower under this Section 3.17., the Issuing Bank Borrower may, by notice to such Lender (with a copy to the Administrative Agent), suspend the obligation of such Lender to make or Continue LIBOR Loans or to Convert Base Rate Loans into LIBOR Loans, until the event or condition giving rise to such other Recipient, as request ceases to be in effect (in which case the case may be, for provisions of Section 3.17. shall be applicable); provided that such additional costs incurred or reduction sufferedsuspension shall not affect the right of such Lender to receive the compensation so requested.
(b) If If, after the Agreement Date, any Lender or the Issuing Bank shall have determined that the adoption of any Change in Applicable Law regarding capital adequacy or liquidity requirements any change therein or in the interpretation or administration thereof by any Governmental Authority, or any request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s Lender or the Issuing Bank’s holding company, if any, any corporation controlling such Lender as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto Lender's obligations hereunder to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company corporation could have achieved but for such Change in Law adoption, change, request, or directive (taking into consideration such Lender’s or the Issuing Bank’s its policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) adequacy), then from time to time upon demand the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or Lender for such Lender’s or the Issuing Bank’s holding company for any such reduction sufferedreduction.
(c) A certificate Each Lender shall promptly notify the Borrower and the Administrative Agent of a Lenderany event of which it has knowledge, occurring after the Issuing Bank or Agreement Date, which will entitle such other Recipient setting forth the amount or amounts necessary Lender to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above compensation pursuant to this Section. Any Lender claiming compensation under this Section shall be delivered furnish to the Borrower and the Administrative Agent a statement setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive absent in the absence of manifest error. The Borrower shall pay In determining such Lenderamount, the Issuing Bank or such other Recipient the amount shown as due on Lender may use any such certificate delivered by it within 10 days after its receipt of the samereasonable averaging and attribution methods.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If any Change in Law shall:
(i) shall impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge deposit or similar requirement against assets of, deposits with or for the account of of, or credit extended by by, any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation in any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or such other Recipient Lender of making or maintaining any Loan (or of maintaining its obligation to increase the cost to make any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit Loan) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient Lender hereunder (whether of principal, interest or otherwise) ), then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand Lender such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, Lender for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined determines that any Change in Law regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company company, as applicable, could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company company, as applicable, with respect to capital adequacy or liquidity) adequacy), then from time to time the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank ’s or such Lender’s or the Issuing Bank’s holding company company, as applicable, for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient Lender setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank Lender or such other Recipient or the Lender’s holding company, as applicablethe case may be, as specified in paragraph (aSections 3.6(a) or and (b) above ), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient Lender the amount shown as due on any such certificate delivered by it within 10 ten (10) days after its receipt of the samethereof.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient Lender to demand compensation pursuant to this Section 2.14 3.6 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided provided, that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above a Lender pursuant to this Section 3.6 for any increased costs incurred or reductions suffered incurred more than nine months 180 days prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, reductions and of such Lender’s, the Issuing Bank’s or other such Recipient’s intention to claim compensation therefor (except therefor; provided further, that, if the Change in Law giving rise to such increased costs or reductions is retroactiveretroactive or if Lender is prohibited under Applicable Law from giving such notice, then the nine180-month day period referred to above shall be extended to include the period of retroactive effect thereof)thereof or any period where such notice could not lawfully be given.
Appears in 1 contract
Samples: Loan and Security Agreement (Harvest Capital Credit Corp)
Increased Costs Capital Adequacy. (a) If the adoption or effectiveness, after the date hereof, of any Change applicable law, rule or regulation, or any change therein, or any change in Law shallthe interpretation or administration thereof by any governmental authority, central bank or 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) of 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 shall change the basis of taxation of payments to any Bank of the principal of or interest on any LIBOR Loan or any other amounts due under this Agreement in respect of any LIBOR Loan or 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, compulsory loan, deposit insurance charge 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 of, or credit extended by by, any Lender Bank or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) 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
(iii) shall impose on any Lender or the Issuing Bank or on the London interbank market any other conditioncondition affecting any LIBOR Loan of such Bank, cost or expense (other than Taxes) affecting this Agreement or Loans made any Note issued by such Lender Bank or any Letter of Credit or participation in any Letter of Credit; Bank's obligations to make LIBOR Loans and the result of any of the foregoing shall be is to increase the cost to such Lender, the Issuing Bank or such other Recipient of making or maintaining any Loan or to increase the cost to any LenderLIBOR Loan, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation in any Letter of Credit or to reduce the amount of any sum received or receivable by such LenderBank under this Agreement or under any Note with respect thereto, the Issuing by an amount deemed by such Bank or such other Recipient hereunder (whether of principalto be material, interest or otherwise) then the Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may bethen, upon demand by such Bank and receipt of a Bank Certificate from such Bank with respect thereto, the Borrowers shall pay (and shall be jointly and severally obligated to pay) to the Agent for the account of such Bank such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional increased costs incurred or reduction sufferedin receipts.
(b) If any Lender or the Issuing Bank shall have determined that the adoption or effectiveness after the date hereof of any Change in Law applicable law, rule or regulation regarding capital adequacy requirements for banks or liquidity requirements has bank holding companies, or would have any change therein after the effect of reducing date hereof, or any change after the rate of return on date hereof 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 such Lender’s Bank with any request or the Issuing Bank’s capital or on the capital directive of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy or liquidity) then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender, the Issuing Bank or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or such other Recipient or the holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Issuing Bank or such other Recipient the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender, the Issuing Bank or other such Recipient to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s, the Issuing Bank’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender, the Issuing Bank or other such Recipient under paragraph (a) or (b) above pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, the Issuing Bank or other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s, the Issuing Bank’s or other such Recipient’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).entity regarding capital
Appears in 1 contract
Samples: Loan Agreement (Comforce Corp)