Increased Costs, Illegality, etc. (a) In the event that any Bank shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent): (i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOR; or (ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan because of (x) any change since the date of this Agreement in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to (A) a change in the basis of taxation of payment to any Bank of the principal of or interest on the Loans or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR and/or (y) other circumstances since the date of this Agreement affecting such Bank, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such market; or (iii) at any time, that the making or continuance of any Fixed Rate Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur. Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers with respect to any affected Fixed Rate Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded, (y) in the case of clause (ii) above, the respective Borrowers shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers by such Bank shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. (b) At any time that any Fixed Rate Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (x) if the affected Fixed Rate Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert such Fixed Rate Loan into a Base Rate Loan, provided that, if more than one Bank is affected at any time, all affected Banks must be treated the same pursuant to this Section 1.10(b). (c) If at any time after the date of this Agreement any Bank determines that the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank or any corporation controlling such Bank based on the existence of such Bank's portion of the Total Commitment or its obligations hereunder, then the Borrowers shall pay to such Bank, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected Borrowers, which notice shall show the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 3 contracts
Samples: Credit Agreement (Galaxy Fund /De/), Credit Agreement (Galaxy Fund Ii), Credit Agreement (Galaxy Vip Fund)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement Closing Date affecting the London interbank Eurodollar market or the domestic Canadian interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR Rate or IBOR; orCanadian B/A Rate;
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed LIBOR Rate Loan or B/A Equivalent Loan because of (x) any change since the date of this Agreement Closing Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the official interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, official guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank of the principal of additional Tax imposed on any Lender (except Indemnified Taxes or interest on the Loans Other Taxes indemnified under Section 5.01 or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or thereinExcluded Taxes) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR Rate or IBOR and/or (y) other circumstances since the date of this Agreement affecting such BankCanadian B/A Rate, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such marketas applicable; or
(iii) at any time, that the making or continuance of any Fixed LIBOR Rate Loan or B/A Equivalent Loans has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Closing Date which materially and adversely affects the London interbank Eurodollar market or the domestic Canadian interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) writing to the affected Lead Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, or B/A Equivalent Loans shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Lead Borrower or the Canadian Borrower, as applicable, with respect to any affected Fixed LIBOR Rate Loans or B/A Equivalent Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the applicable Borrowers, (y) in the case of clause (ii) above, each U.S. Borrower, jointly and severally, agrees to pay, and the respective Borrowers shall pay Canadian Borrower agrees to pay, as applicable, to such BankLender, promptly upon its such Lender’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to setting forth the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, shall be submitted to the affected Borrowers Lead Borrower by such Bank Lender and shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and ), (z) in the case of clause (iii) above, the respective Borrowers shall take one of the actions specified in Section 1.10(b3.01(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed LIBOR Rate Loan or B/A Equivalent Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii3.01(a)(ii), the respective Lead Borrower may (or the Canadian Borrower, as applicable, may, and in the case of a Fixed LIBOR Rate Loan or a B/A Equivalent Loan affected by the circumstances described in Section 1.10(a)(iii) 3.01(a)(iii), the Lead Borrower or the Canadian Borrower, as applicable, shall) , on its own behalf or on behalf of the relevant Borrower either (x) if the affected Fixed LIBOR Rate Loan or B/A Equivalent Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic written notice (confirmed in writing) on the same date that such the Lead Borrower or Canadian Borrower, as applicable, was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii3.01(a)(ii) or (iii) or (y) if the affected Fixed LIBOR Rate Loan or B/A Equivalent Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed LIBOR Rate Loan into a U.S. Base Rate Loan or Canadian Base Rate Loan, as applicable, or such B/A Equivalent Loan into a Canadian Prime Loan, provided that, that if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b3.01(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Closing Date the introduction of or any change in any applicable law Applicable Law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacyadequacy or liquidity, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital or liquidity required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Commitment Lender’s Commitments hereunder or its obligations hereunder, then each applicable Borrower, (jointly and severally as regards to the Borrowers shall U.S. Borrowers), agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capitalcapital or liquidity. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c3.01(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c3.01(c), will give prompt written notice thereof to the affected BorrowersLead Borrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
(d) Notwithstanding anything in this Agreement to the contrary, provided(x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, howeverrules, that failure guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to give any such notice Basel III ((x) and (y) collectively referred to as “Xxxx-Xxxxx and Basel III”), shall not release be deemed to be a change after the Closing Date in a Requirement of Law or diminish any obligation government rule, regulation or order, regardless of the Borrowers to pay additional amounts pursuant to date enacted, adopted, issued or implemented (including for purposes of this Section 1.10(c) upon receipt of such notice3.01).
Appears in 3 contracts
Samples: Credit Agreement (Ryerson Holding Corp), Credit Agreement (Ryerson Holding Corp), Credit Agreement (Ryerson Holding Corp)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREuro Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Euro Rate Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such Bank, pursuant to the laws of Lender imposed by the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or thereinlocated) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances arising since the date of this Agreement Effective Date affecting such BankLender, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such market; ormarket (whether or not such Lender was a Lender at the time of such occurrence);
(iii) at any time, that the making or continuance of any Fixed Euro Rate Loan has been made (x) unlawful by any law or governmental rule, regulation or order, order (y) impossible by compliance by any Bank in good faith or would conflict with any governmental rule, regulation, guideline, request (whether or order not having the force of law) law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawful), or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London applicable interbank Eurodollar market or market; or
(iv) at any time that a Non-Dollar Currency is not available in sufficient amounts, as determined in good faith by the domestic interbank Eurodollar marketAdministrative Agent, to fund any Borrowing of Non-Dollar Denominated Loans requested pursuant to Section 2.01; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (xw) in the case of clause (i) above, LIBOR Rate (A) in the event Eurodollar Loans and/or IBOR Rate Loansare so affected, as the case may be, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower and (B) in the event that any Non-Dollar Denominated Loan is so affected, the relevant Euro Rate shall be determined on the basis provided in the proviso to the definition of the relevant Euro Rate, (yx) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a with the written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereofLender, submitted to the affected Borrowers Borrower by such Bank shallLender in accordance with the foregoing to be, absent manifest error, be final and conclusive and binding on all the parties hereto, although the failure to give any such notice shall not release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 2.10(a) and upon the subsequent receipt of such notice), (zy) in the case of clause (iii) above, the respective Borrowers Borrower or shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by lawlaw and (z) in the case of clause (iv) above, Non-Dollar Denominated Loans denominated in the affected Non-Dollar Currency (exclusive of any such Non-Dollar Denominated Loans which have theretofore been funded) shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or notice pursuant to Section 2.03(b)(i) given by the Borrower with respect to such Non-Dollar Denominated Loans which have not been incurred shall be deemed rescinded by the Borrower. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii), (iii) or (iv) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Fixed Euro Rate Loan is affected by the circumstances described in Section 1.10(a)(ii2.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Euro Rate Loan affected by the circumstances described in Section 1.10(a)(iii2.10(a)(iii) shall) either (x) if the affected Fixed Euro Rate Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (y) if the affected Fixed Euro Rate Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, (A) in the case of a Eurodollar Loan, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the circumstance described in Section 2.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law) and (B) in the case of any Euro Rate Loan (other than a Eurodollar Loan), repay all outstanding Borrowings which include such affected Euro Rate Loans in full in accordance with the applicable requirements of Section 5.01; provided that, (i) if the circumstances described in Section 2.10(a)(iii) apply to any Non-Dollar Denominated Loan, the Borrower, may, in lieu of taking the actions described above, maintain such Non-Dollar Denominated Loan outstanding, in which case, (x) in the case of Euro Denominated Loans, the applicable Euro Rate shall be determined on the basis provided in the proviso to the definition of Euro LIBOR or (y) in the case of Sterling Denominated Term Loans, the applicable Euro Rate shall be determined on the basis provided in the proviso to the definition of Sterling LIBOR, as the case may be, unless the maintenance of such Non-Dollar Denominated Loan outstanding on such basis would not stop the conditions described in Section 2.10(a)(iii) from existing (in which case the actions described above, without giving effect to the proviso, shall be required to be taken) and (ii) if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Effective Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Commitment Lender’s Revolving Loan Commitments hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show the set forth such Lender’s basis for calculation asserting its rights under this Section 2.10(c) and the calculation, in reasonable detail, of such additional amountsamounts claimed hereunder, provided, however, that although the failure to give any such notice shall not release or diminish any obligation of the Borrowers Borrower’s obligations to pay additional amounts pursuant to this Section 1.10(c2.10(c) upon the subsequent receipt of such notice. A Lender’s good faith determination of compensation owing under this Section 2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. In the event that any Lender shall in good faith determine (which determination shall, absent manifest error, be final and conclusive and binding on all parties hereto) at any time that such Lender is required to maintain reserves (including, without limitation, any marginal, emergency, supplemental, special or other reserves required by applicable law) which have been established by any Federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body with jurisdiction over such Lender (including any branch, Affiliate or funding office thereof) in respect of any Non-Dollar Denominated Loans or any category of liabilities which includes deposits by reference to which the interest rate on any Non-Dollar Denominated Loan is determined or any category of extensions of credit or other assets which includes loans by a non-United States office of any Lender to non-United States residents, then, unless such reserves are included in the calculation of the interest rate applicable to such Non-Dollar Denominated Loans or in Section 2.10(a)(ii), such Lender shall promptly notify the Borrower in writing specifying the additional amounts required to indemnify such Lender against the cost of maintaining such reserves (such written notice to provide in reasonable detail a computation of such additional amounts) and the Borrower shall pay to such Lender such specified amounts as additional interest at the time that the Borrower is otherwise required to pay interest in respect of such Non-Dollar Denominated Loan or, if later, on written demand therefor by such Lender.
Appears in 3 contracts
Samples: Credit Agreement (Dole Food Co Inc), Credit Agreement (Dole Food Co Inc), Credit Agreement (Dole Food Co Inc)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOR“LIBO Rate”; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate LIBOR Loan because of (x) any change since the Closing Date (or the date of this Agreement such Lender became a Lender hereunder, if later) in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank of the principal of or interest on the Loans or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B1) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR LIBO Rate, or IBOR and/or (y2) any change subjecting any Recipient to any Taxes (except for Excluded Taxes and any Indemnified Taxes) on its loans, loan principal, letters of credit, commitments, or other circumstances since the date of this Agreement affecting such Bankobligations, the London interbank Eurodollar market or the domestic interbank Eurodollar market its deposits, reserves, other liabilities or the position of such Bank in either such marketcapital attributable thereto; or
(iii) at any time, that the making or continuance of any Fixed Rate LIBOR Loan has been made (xA) unlawful by any law or governmental rule, regulation or order, (yB) impossible by compliance by any Bank Lender in good faith with any governmental request from a Governmental Authority (whether or not having force of law) or (zC) impracticable as a result of a contingency contingency, other than with respect to a tax matter not otherwise provided for in this Section 2.10, occurring after the Closing Date or since the date of this Agreement such Person becomes a Lender, if later, which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar marketgenerally; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) writing to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer not be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or any Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate LIBOR Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its such Lender’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, and stating that such Lender is charging such costs to its borrowers generally pursuant to its internal policies, submitted to the affected Borrowers Borrower by such Bank Lender (with a copy to the Administrative Agent) shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as reasonably possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate LIBOR Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the respective Borrower may (may, and in the case of a Fixed Rate LIBOR Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), the Borrower shall) , either (xi) if the affected Fixed Rate LIBOR Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic written notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (yii) if the affected Fixed Rate LIBOR Loan is then outstanding, upon at least three Business Days' ’ written notice by the Borrower to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate LIBOR Loan into a Base Rate Loan; provided, provided that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender determines that after the Closing Date (or the date of this Agreement any Bank determines that such Lender became a Lender hereunder, if later) the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Lender’s Commitment hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable; provided, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the affected BorrowersBorrower (with a copy to the Administrative Agent), which notice shall show in reasonable detail the basis for calculation of such additional amounts, ; provided, howeverfurther, that, notwithstanding anything in this Agreement to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III shall, in each case, be deemed to be a change after the Closing Date in a requirement of law or government rule, regulation or order, regardless of the date enacted, adopted, issued or implemented (including for purposes of this Section 2.10).
(d) It is understood that failure to give any such notice this Section 2.10 shall not release apply to Excluded Taxes or diminish any obligation Indemnified Taxes.
(e) Effect of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such noticeBenchmark Transition Event.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (J.Jill, Inc.), Subordinated Term Loan Credit Agreement (J.Jill, Inc.)
Increased Costs, Illegality, etc. (a) In the event that any Bank shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change Change in Law since the date of this Agreement in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or requestAgreement, such as, for example, but not limited to to: (A) a change in Covered Taxes resulting from the basis of taxation of payment to any Bank of the principal of or interest on the Loans such Eurodollar Loan or any other amounts payable hereunder (except for changes hereunder, but without duplication of any amounts payable in the rate respect of tax on, or determined by reference to, the net income or profits of such Bank, Taxes pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) Section 4.04(a), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances since the date of this Agreement affecting such Bank, the London interbank Eurodollar market Bank or the domestic interbank Eurodollar market or the position of such Bank in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall at the option of the Borrower (i) be deemed rescindedrescinded by the Borrower or (ii) be deemed to constitute a Notice of Borrowing or Notice of Conversion to, as applicable, Base Rate Loans, (y) in the case of clause (ii) above, the respective Borrowers Borrower shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank reasonably in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers shall take one each Eurodollar Loan of the actions specified affected Bank(s) shall be converted to a Base Rate Loan either on the last day of the then current Interest Period or, if such Bank shall determine that it may not lawfully maintain and fund such Eurodollar Loan to such day, immediately. Each of the Administrative Agent and each Bank agrees that if it gives notice to the Borrower of any of the events described in Section 1.10(bclause (i) as or (iii) above, it shall promptly as possible notify the Borrower and, in the case of any eventsuch Bank, within the time period required by lawAdministrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Bank, the obligations of such Bank to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein shall be reinstated.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii1.11(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii1.11(a)(iii) shall) either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii1.11(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, ; provided that, if more than one Bank is affected at any time, then all affected Banks must be treated the same pursuant to this Section 1.10(b1.11(b).
(c) If at any time after the date of this Agreement Effective Date, any Bank determines that the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank or any corporation controlling such Bank based on the existence of such Bank's portion of the Total Commitment Commitments hereunder or its obligations hereunder, then the Borrowers Borrower shall pay to such Bank, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will act reasonably and in Such Bank's reasonable good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's determination of compensation owing under this Section 1.10(c1.11(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c1.11(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show set forth the basis for of the calculation of such additional amounts, provided, however, that although the failure to give any such notice shall not release or diminish any obligation of the Borrowers Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c1.11(c) upon the subsequent receipt of such notice.
Appears in 2 contracts
Samples: Credit Agreement (Appliance Warehouse of America Inc), Credit Agreement (Coinmach Corp)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement Effective Date affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such Bank, Lender pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances arising since the date of this Agreement Effective Date affecting such BankLender, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its such Lender’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b2.09(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.09(a)(ii), the respective Borrower may (may, and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) 2.09(a)(iii), the Borrower shall) , either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.09(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, provided that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.09(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Effective Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the National Association of Insurance Commissioners or any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Commitment or its Lender’s obligations hereunder, then the Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c2.09(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.09(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 2 contracts
Samples: Credit Agreement (Shuffle Master Inc), Credit Agreement (Shuffle Master Inc)
Increased Costs, Illegality, etc. (a) In the event that any Bank shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement Original Effective Date affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORQuoted Rate; or
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change since the date of this Agreement Original Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment payments to any Bank of the principal of or interest on the Loans Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of Bank imposed by the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or thereinlocated) or (B) a change in official reserve requirements, requirements (but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Quoted Rate) and/or (y) other circumstances since the date of this Agreement Original Effective Date affecting such Bank, the London interbank Eurodollar market Bank or the domestic interbank Eurodollar market or the position of such Bank in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank in good faith with any governmental request (whether or not having the force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Original Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (if by telephone telephone, promptly confirmed in writing) to the affected Borrower or Borrowers Borrower, and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers Borrower shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (xi) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) ), cancel the respective Borrowing or conversion, or (yii) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, ; provided that, that if more than one Bank is affected at any time, then all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement Original Effective Date hereof, any Bank determines that the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive guideline or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank or any corporation controlling such Bank based on the existence of such Bank's portion of the Total Commitment Commitments hereunder or its obligations hereunder, then the Borrowers Borrower shall pay to such Bank, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, ; provided that such Bank's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts, provided, however, that although the failure to give any such notice shall not release or diminish any obligation of the Borrowers Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice).
Appears in 2 contracts
Samples: Credit Agreement (Hq Global Holdings Inc), Credit Agreement (Frontline Capital Group)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause clauses (i) and (iv) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement Closing Date affecting the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR the relevant Euro Rate or IBORB/A Equivalent Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Euro Rate Loan because of (x) any change since the date of this Agreement Closing Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or taxes that are determined by reference to, to the net income or net profits or franchise taxes imposed in lieu thereof of such BankLender or, in the case of a Lender that is a flow-through entity for tax purposes, a member or a partner of such Lender, pursuant to the laws of the country or national jurisdiction (or any political subdivision thereof) in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or thereinlocated) or and (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR relevant B/A Equivalent Rate or IBOR and/or Euro Rate, as applicable (y) other circumstances since provided that increased costs or reductions in the date of this Agreement affecting such Bankamounts received or receivable with respect to Taxes and Swiss Withholding Taxes shall be dealt with exclusively pursuant to Sections 5.04 and 5.05, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such marketrespectively); or
(iii) at any time, that the making or continuance of any Fixed B/A Equivalent Loan or Euro Rate Loan has been made (x) unlawful by any change since the Closing Date in any applicable law or governmental rule, regulation or order, or (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring made after the date Closing Date; or
(iv) at any time there is no market for bankers’ acceptances by reason of this Agreement which materially and adversely affects circumstances affecting the London interbank Eurodollar Canadian money market generally or the domestic interbank Eurodollar marketrelevant Available Currency (other than U.S. Dollars) is not available in sufficient amounts, as determined in good faith by the Administrative Agent, acting reasonably, to support funding any Borrowing of B/A Equivalent Loans, Non-Dollar Denominated Loans, as the case may be, requested pursuant to Section 2.01; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause clauses (i) or (iv) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause clauses (i) and (iv) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (xw) in the case of clause (i) above, LIBOR Rate (A) in the event Eurodollar Loans and/or IBOR Rate Loansare so affected, as the case may be, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrowers affected Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by such Borrower, and (B) in the event that any Non-Dollar Denominated Loan is so affected, the relevant Euro Rate shall be determined on the basis provided in the proviso to the definition for the relevant Euro Rate, (yx) in the case of clause (ii) above, the respective Borrowers shall agree to pay to such BankLender, promptly upon its such Lender’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole reasonable discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for and the calculation thereof, submitted to the affected Borrowers by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and ), (zy) in the case of clause (iii) above, the respective affected Borrower or Borrowers shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by law, and (z) in the case of clause (iv) above, B/A Equivalent Loans or Loans in the relevant Available Currency, as applicable (exclusive of any such Loans, that have theretofore been funded), shall no longer be available until such time as the Administrative Agent notifies the affected Borrower or Borrowers and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or notice pursuant to Section 2.03 given by the respective Borrower or Borrowers with respect to such Loans which have not been incurred shall be deemed rescinded by such Borrower or Borrowers. Each of the Administrative Agent and each Lender agrees that if it gives notice to any Borrower of any of the events described in clause (i), (ii), (iii) or (iv) above, it shall promptly notify such Borrower and, in the case of any such Lender, the Administrative Agent, promptly after it becomes aware that such event has ceased to exist.
(b) At any time that any Fixed B/A Equivalent Loan or Euro Rate Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the respective affected Borrower may (and and, in the case of a Fixed B/A Equivalent Loan or Euro Rate Loan affected by the circumstances described in Section 1.10(a)(iii2.10(a)(iii) or (iv), the affected Borrower shall) , either (x) if the affected Fixed B/A Equivalent Loan or Euro Rate Loan is then being made initially or pursuant to a conversion, cancel such Borrowing (or the respective Borrowing conversion thereof) by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that on which such Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (y) if the affected Fixed B/A Equivalent Loan or Euro Rate Loan is then outstanding, upon at least three (3) Business Days' ’ written notice to the Administrative Agent, (A) in the case of a Eurodollar Loan, require the affected Bank Lender to convert such Fixed Rate such, Eurodollar Loan into a Base Rate Loan, (B) in the case of a B/A Equivalent Loan, require the affected Canadian Lender to convert such B/A Equivalent Loan into a Canadian Prime Rate Loan, or (C) in the case of any Non-Dollar Denominated Euro Rate Loan, repay such affected Non-Dollar Denominated Euro Rate Loan in full in accordance with the applicable requirements of Section 5.01; provided that, (i) if the circumstances described in Section 2.10(a)(iii) apply to any Non-Dollar Denominated Euro Rate Loan, the Borrowers may, in lieu of taking the actions described above, maintain such Non-Dollar Denominated Euro Rate Loan outstanding, in which case, the relevant Euro Rate shall be determined on the basis provided in the proviso to the definition of the relevant Euro Rate unless the maintenance of such Non-Dollar Denominated Euro Rate Loan outstanding on such basis would not stop the conditions described in Section 2.10(a)(iii) from existing (in which case the actions described above, without giving effect to this proviso, shall be required to be taken) and (ii) if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender reasonably determines that after the date of this Agreement any Bank determines that Closing Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agencyagency charged with the administration thereof, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Commitment Lender’s Commitments hereunder or its obligations hereunder, then the Borrowers shall each affected Borrower agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will Lender shall act reasonably and in good faith and will shall use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will shall give prompt written notice thereof to the each affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts, provided, however, that failure .
(d) Failure or delay on the part of any Lender to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts demand compensation pursuant to this Section 1.10(c) upon receipt shall not constitute a waiver of such noticeLender’s right to demand such compensation; provided that (x) the affected Borrower or Borrowers shall not be required to compensate a Lender pursuant to this Section 2.10 for any increased costs or reductions incurred more than one hundred eighty (180) days prior to the date on which such Lender notifies the Borrowers of the change in law or other circumstance described in Section 2.10(a)(ii) or 2.10(c) giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor and (y) if such change in law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 2 contracts
Samples: Credit Agreement (Aleris Ohio Management, Inc.), Credit Agreement (Aleris Ohio Management, Inc.)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (ii)(A) below, may be made only by the Administrative Agent, and with respect to clause (i)(B) below may be made only by the Administrative Agent, acting at its own discretion or at the direction of the Required Lenders):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, (A) adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR Eurodollar Rate or IBOR(B) the Eurodollar Rate with respect to any Eurodollar Loan does not adequately and fairly reflect the cost of Lenders of funding such Eurodollar Loan; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such Bank, Lender pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR and/or (y) other circumstances since the date of this Agreement affecting such Bank, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such marketRate; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, or (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market); then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (ii)(A) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (i)(B) or (ii) above, the respective Borrowers shall Borrower agrees to pay to each affected Lender, upon such Bank, promptly upon its affected Lender’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender shall determine in its sole discretion shall determinegood faith) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the respective Borrower may (may, and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), the Borrower shall) , either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, provided that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Effective Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Commitment Lender’s Commitments hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts, provided, however, that failure .
(d) Failure or delay on the part of any Lender to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts demand compensation pursuant to this Section 1.10(c) upon receipt 2.10 shall not constitute a waiver of such noticeLender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than 180-days prior to the date that such Lender notifies the Borrower of the circumstances giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided further that if the circumstances giving rise to such increased costs or reductions are retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 2 contracts
Samples: Credit Agreement (CF Industries Holdings, Inc.), Credit Agreement (CF Industries Holdings, Inc.)
Increased Costs, Illegality, etc. (a) In the event that any Bank shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement Effective Date affecting the London interbank Eurodollar market or the domestic interbank Eurodollar eurocurrency market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurocurrency Rate; or
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, orderguideline, guideline order or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, order such as, for example, but not limited to (A) a change in the basis of taxation of payment to any Bank of the principal of or interest on the Loans or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurocurrency Rate and/or (y) any other circumstances since the date of this Agreement affecting such Bank, the London interbank Eurodollar market Bank or the domestic interbank Eurodollar eurocurrency market or the position of such Bank in either such market; or
(iii) at any time, time that the making or continuance of any Fixed Rate Loan has been made become (x) unlawful by compliance by such Bank with any law or law, governmental rule, regulation regulation, guideline or order, order or (y) impossible by compliance by any such Bank in good faith with any governmental request (whether or not having the force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market); then, and in any such event, such Bank (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the Company, any affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurocurrency Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Company, any affected Borrower and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers Borrower with respect to any such affected Fixed Rate Eurocurrency Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedto be a request for Base Rate Loans, (y) in the case of clause (ii) above, the respective Borrowers such Borrower shall pay to such Bank, promptly upon its written demand thereforwithin 15 days of receipt of the notice referred to below, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing setting forth in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank shall, absent manifest error, be final and conclusive and binding on upon all the parties hereto) and (z) in the case of the clause (iii) above, the respective Borrowers such Borrower shall take one of the actions specified in Section 1.10(b1.11(b) as promptly as possible and, in any event, within the time period required by law. To the extent the notice required by the preceding sentence and relating to costs arising under clause (ii) above is given by any Bank more than 90 days after the occurrence of the event giving rise to the additional costs of the type described in clause (ii) above, such Bank shall not be entitled to compensation under this Section 1.11(a) for any amounts incurred or accrued prior to the giving of such notice to the affected Borrower.
(b) At any time that any Fixed Rate Loan is affected by the circumstances described in Section 1.10(a)(ii1.11(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Loan affected by the circumstances described in pursuant to Section 1.10(a)(iii1.11(a)(iii) shall) either (x) if the affected Fixed Rate Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) thereof on the same date that such Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii1.11(a)(ii) or (iii) or require the affected Bank to make such Fixed Rate Loan as or convert such Fixed Rate Loan into, a Base Rate Loan or (y) if the affected Fixed Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert such Fixed Rate Loan into a Base Rate Loan, provided that, if more than one Bank is similarly affected at any time, then all similarly affected Banks must be treated the same pursuant to this Section 1.10(b1.11(b).
(c) If any Bank determines at any time that any change after the date of this Agreement any Bank determines that the introduction of or any change Effective Date in any applicable law or governmental rule, regulation, guideline, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank or any corporation controlling such Bank based on the existence of such Bank's portion of the Total Commitment hereunder or its obligations hereunder, then the Borrowers shall jointly and severally agree to pay to such Bank, promptly upon its written demand thereforwithin 15 days of the receipt of the notice referred to below, such additional amounts as shall be required to compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's determination of compensation owing under this Section 1.10(c1.11(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c1.11(c), will give prompt written notice thereof to the affected Borrowers, which notice shall show in reasonable detail the basis for calculation of such additional amounts, provided, however, that although the failure to give any such notice shall not release or diminish any obligation of the Borrowers Borrowers' obligations to pay additional amounts pursuant to this Section 1.10(c1.11(c). To the extent the notice required by the immediately preceding sentence is given by any Bank more than 90 days after the occurrence of the event giving rise to the additional costs of the type described in this Section 1.11(c), such Bank shall not be entitled to compensation under this Section 1.11(c) upon receipt for any amounts incurred or accrued prior to the giving of such noticenotice to the Borrowers.
Appears in 2 contracts
Samples: Global Revolving Credit Agreement (Sealed Air Corp/De), Global Revolving Credit Agreement (Sealed Air Corp/De)
Increased Costs, Illegality, etc. (a) In the event that any Bank shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change since the date of this Agreement in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank of the principal of or interest on the Loans such Eurodollar Loan or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such Bank, or any franchise tax based on the net income or net profits of such Bank, in either case pursuant to the laws of the United States of America, the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) ), but without duplication of any amounts payable in respect of Taxes pursuant to Section 4.04(a), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances since the date of this Agreement affecting such Bank, the London interbank Eurodollar market Bank or the domestic interbank Eurodollar market or the position of such Bank in either such marketmarket (except as a result of a deterioration in the creditworthiness of such Bank subsequent to the date hereof); or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrowers, (y) in the case of clause (ii) above, the respective Borrowers shall jointly and severally agree to, subject to the provisions of Section 13.15 (to the extent applicable), pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers by such Bank in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Bank agrees that if it gives notice to the Borrowers of any of the events described in clause (i) or (iii) above, it shall promptly notify the Borrowers and, in the case of any such Bank, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Bank, the obligations of such Bank to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein shall be reinstated.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower Borrowers may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was the Borrowers were notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, provided that, if more than one Bank is affected at any time, then all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Bank determines that the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank or any corporation controlling such Bank based on the existence of such Bank's portion of the Total Commitment Commitments hereunder or its obligations hereunder, then the Borrowers shall jointly and severally agree, subject to the provisions of Section 13.15 (to the extent applicable), to pay to such Bank, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's reasonable good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected Borrowers, which notice shall show the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 2 contracts
Samples: Credit Agreement (Interco Inc), Credit Agreement (Furniture Brands International Inc)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause clauses (i) and (iv) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement Closing Date affecting the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR the relevant Euro Rate or IBORB/A Equivalent Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Euro Rate Loan because of (x) any change since the date of this Agreement Closing Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or taxes that are determined by reference to, to the net income or net profits or franchise taxes imposed in lieu thereof of such BankLender or, in the case of a Lender that is a flow-through entity for tax purposes, a member or a partner of such Lender, pursuant to the laws of the country or national jurisdiction (or any political subdivision thereof) in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or thereinlocated) or and (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR relevant B/A Equivalent Rate or IBOR and/or Euro Rate, as applicable (y) other circumstances since provided that increased costs or reductions in the date of this Agreement affecting such Bankamounts received or receivable with respect to Taxes and Swiss Withholding Taxes shall be dealt with exclusively pursuant to Sections 5.04 and 5.05, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such marketrespectively); or
(iii) at any time, that the making or continuance of any Fixed B/A Equivalent Loan or Euro Rate Loan has been made (x) unlawful by any change since the Closing Date in any applicable law or governmental rule, regulation or order, or (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring made after the date Closing Date; or
(iv) at any time there is no market for bankers’ acceptances by reason of this Agreement which materially and adversely affects circumstances affecting the London interbank Eurodollar Canadian money market generally or the domestic interbank Eurodollar marketrelevant Available Currency (other than U.S. Dollars) is not available in sufficient amounts, as determined in good faith by the Administrative Agent, acting reasonably, to support funding any Borrowing of B/A Equivalent Loans, Non-Dollar Denominated Loans, as the case may be, requested pursuant to Section 2.01; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause clauses (i) or (iv) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause clauses (i) and (iv) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (xw) in the case of clause (i) above, LIBOR Rate (A) in the event Eurodollar Loans and/or IBOR Rate Loansare so affected, as the case may be, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrowers affected Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by such Borrower, and (B) in the event that any Non-Dollar Denominated Loan is so affected, the relevant Euro Rate shall be determined on the basis provided in the proviso to the definition for the relevant Euro Rate, (yx) in the case of clause (ii) above, the respective Borrowers shall agree to pay to such BankLender, promptly upon its such Lender’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole reasonable discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for and the calculation thereof, submitted to the affected Borrowers by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and ), (zy) in the case of clause (iii) above, the respective affected Borrower or Borrowers shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by law, and (z) in the case of clause (iv) above, B/A Equivalent Loans or Loans in the relevant Available Currency, as applicable (exclusive of any such Loans, that have theretofore been funded), shall no longer be available until such time as the Administrative Agent notifies the affected Borrower or Borrowers and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or notice pursuant to Section 2.03 given by the respective Borrower or Borrowers with respect to such Loans which have not been incurred shall be deemed rescinded by such Borrower or Borrowers. Each of the Administrative Agent and each Lender agrees that if it gives notice to any Borrower of any of the events described in clause (i), (ii), (iii) or (iv) above, it shall promptly notify such Borrower and, in the case of any such Lender, the Administrative Agent, promptly after it becomes aware that such event has ceased to exist.
(b) At any time that any Fixed B/A Equivalent Loan or Euro Rate Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the respective affected Borrower may (and and, in the case of a Fixed B/A Equivalent Loan or Euro Rate Loan affected by the circumstances described in Section 1.10(a)(iii2.10(a)(iii) or (iv), the affected Borrower shall) , either (x) if the affected Fixed B/A Equivalent Loan or Euro Rate Loan is then being made initially or pursuant to a conversion, cancel such Borrowing (or the respective Borrowing conversion thereof) by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that on which such Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (y) if the affected Fixed B/A Equivalent Loan or Euro Rate Loan is then outstanding, upon at least three (3) Business Days' ’ written notice to the Administrative Agent, (A) in the case of a Eurodollar Loan, require the affected Bank Lender to convert such Fixed Rate such, Eurodollar Loan into a Base Rate Loan, (B) in the case of a B/A Equivalent Loan, require the affected Canadian Lender to convert such B/A Equivalent Loan into a Canadian Prime Rate Loan, or (C) in the case of any Non-Dollar Denominated Euro Rate Loan, repay such affected Non-Dollar Denominated Euro Rate Loan in full in accordance with the applicable requirements of Section 5.01; provided that, (i) if the circumstances described in Section 2.10(a)(iii) apply to any Non-Dollar Denominated Euro Rate Loan, the Borrowers may, in lieu of taking the actions described above, maintain such Non-Dollar Denominated Euro Rate Loan outstanding, in which case, the relevant Euro Rate shall be determined on the basis provided in the proviso to the definition of the relevant Euro Rate unless the maintenance of such Non-Dollar Denominated Euro Rate Loan outstanding on such basis would not stop the conditions described in Section 2.10(a)(iii) from existing (in which case the actions described above, without giving effect to this proviso, shall be required to be taken) and (ii) if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender or Issuing Lender reasonably determines that after the date of this Agreement any Bank determines that Closing Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agencyagency charged with the administration thereof, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or such Issuing Lender or any corporation controlling such Bank Lender or such Issuing Lender based on the existence of such Bank's portion of the Total Commitment Lender’s Commitments hereunder or its obligations hereunder, then the Borrowers shall each affected Borrower agrees to pay to such BankLender or such Issuing Lender, promptly as applicable, upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or Issuing Lender or such other corporation for the increased cost to such Bank Lender or such Issuing Lender or such other corporation or the reduction in the rate of return to such Bank Lender, such Issuing Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will Lender and each Issuing Lender shall act reasonably and in good faith and will shall use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s or such Issuing Lender’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender or Issuing Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will shall give prompt written notice thereof to the each affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts. For the avoidance of doubt, providedany changes resulting from requests, howeverrules, that failure guidelines or directives concerning capital adequacy (x) issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or (y) promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities shall be deemed to give any such notice shall not release or diminish any obligation occur after the date of this Agreement, regardless of the Borrowers date enacted, adopted or issued.
(d) Failure or delay on the part of any Lender or Issuing Lender to pay additional amounts demand compensation pursuant to this Section 1.10(c) upon receipt shall not constitute a waiver of such notice.Lender’s or Issuing Lender’s right to demand such compensation; provided that (x) the affected Borrower or Borrowers shall not be required to compensate a Lender or Issuing Lender pursuant to this Section 2.10 for any increased costs or reductions incurred more than one hundred eighty (180) days prior to the date on which such Lender or Issuing Lender notifies the Borrowers of the change in law or other circumstance described in
Appears in 2 contracts
Samples: Credit Agreement (Aleris Ohio Management, Inc.), Credit Agreement (Aleris International, Inc.)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) the adoption after the date hereof or any change since arising after the date of this Agreement in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans Revolving Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, Lender pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office or other permanent establishment of such Lender is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding requirements (other than Eurodollar reserves required under Regulation D to the extent included in the computation of the LIBOR Eurodollar Rate) or IBOR any special deposit, assessment or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (or its applicable lending office) and/or (y) other circumstances since the date of this Agreement affecting such Bank, the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such market; or
(iii) at any timetime after the date of this Agreement, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having the force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market; . then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected respective Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (xw) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers U.S. Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the respective Borrower, (yx) in the case of clause (ii) above, the respective Borrower or Borrowers shall pay to such BankLender, promptly upon its written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion Lender shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected respective Borrower or Borrowers by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) ), and (zy) in the case of clause (iii) above, the respective Borrower or Borrowers shall take one of the actions specified in Section 1.10(b2.11(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii2.11(a)(ii) or (iiia)(iii), the respective Borrower or Borrowers may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii2.11(a)(iii) shall) either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require request the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate LoanLoan (which conversion, in the case of the circumstances described in Section 2.11(a)(iii)) shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan (or such earlier date as shall be required by applicable law)); provided that, if more than one Bank Lender is affected at any timetime as described above in this clause (b), then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.11(b).
(c) If at any time after the date of this Agreement any Bank Lender determines that the introduction of or any change (which introduction or change shall have occurred after the date of this Agreement) in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Commitment Lender’s Commitments hereunder or its obligations hereunder, then the Borrowers shall U.S. Borrower and the Canadian Revolving Loan Borrowers, as applicable, agree to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s reasonable good faith determination of compensation owing under this Section 1.10(c2.11(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.11(c), will give prompt written notice thereof to the affected Borrowers, which notice shall show in reasonable detail the basis for calculation of such additional amountsamounts and shall, providedabsent manifest error, howeverbe final and conclusive and binding on all the parties hereto. In addition, each such Lender, upon determining that failure the circumstances giving rise to give any such notice shall not release or diminish any obligation the payment of the Borrowers to pay additional amounts pursuant to this Section 1.10(c2.11(c) upon receipt of such noticecease to exist, will give prompt written notice thereof to the U.S. Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Host Marriott L P), Credit Agreement (Host Marriott Corp/)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORthe respective Euro Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Euro Rate Loan because of (x) the adoption after the Effective Date or any change since arising after the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans Revolving Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, Lender pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office or other permanent establishment of such Lender is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding requirements (other than Eurodollar reserves required under Regulation D to the extent included in the computation of the LIBOR Eurodollar Rate or IBOR otherwise covered by Section 2.11(d) in respect of Alternate Currency Revolving Loans or included in the computation of the applicable Euro Rate) or any special deposit, assessment or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (or its applicable lending office) and/or (y) other circumstances since the date of this Agreement Effective Date affecting such Bank, the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such market; or
(iii) at any timetime after the Effective Date, that the making or continuance of any Fixed Euro Rate Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having the force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market; or
(iv) at any time that any Alternate Currency is not available in sufficient amounts to fund any Borrowing of Alternate Currency Revolving Loans requested pursuant to Section 2.01; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) or (iv) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected respective Borrower or Borrowers and, except in the case of clause clauses (i) and (iv) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (xw) in the case of clause (i) above, LIBOR Rate (A) if Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers U.S. Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the respective Borrower, and (B) if any Alternate Currency Revolving Loan is so affected, the relevant Euro Rate shall be determined on the basis provided in the proviso appearing in the definition of the relevant Euro Rate, (yx) in the case of clause (ii) above, the respective Borrower or Borrowers shall pay to such BankLender, promptly upon its written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion Lender shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected respective Borrower or Borrowers by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and ), (zy) in the case of clause (iii) above, the respective Borrower or Borrowers shall take one of the actions specified in Section 1.10(b2.11(b) as promptly as possible and, in any event, within the time period required by lawlaw and (z) in the case of clause (iv) above, Alternate Currency Revolving Loans (exclusive of Alternate Currency Revolving Loans which have theretofore been funded) shall no longer be available in the respective Alternate Currency or Alternate Currencies until such time as the Administrative Agent notifies the Alternate Currency Revolving Loan Borrowers and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing given by any Alternate Currency Revolving Loan Borrower with respect to such Alternate Currency Revolving Loans which have not been incurred shall be deemed rescinded by the respective Alternate Currency Revolving Loan Borrower.
(b) At any time that any Fixed Euro Rate Loan is affected by the circumstances described in Section 1.10(a)(ii2.11(a)(ii) or (iiia)(iii), the respective Borrower or Borrowers may (and in the case of a Fixed Euro Rate Loan affected by the circumstances described in Section 1.10(a)(iii2.11(a)(iii) shall) either (x) if the affected Fixed Euro Rate Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Euro Rate Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require (A) in the case of a Eurodollar Loan, request the affected Bank Lender to convert such Fixed Euro Rate Loan into a Base Rate Loan (which conversion, in the case of the circumstances described in Section 2.11(a)(iii)) shall occur no later than the last day of the Interest Period then applicable to such Euro Rate Loan (or such earlier date as shall be required by applicable law)) and (B) in the case of a Euro Rate Loan that is an Alternate Currency Revolving Loan, repay such Alternate Currency Revolving Loan in full; provided thatthat (i) if the circumstances described in Section 2.11(a)(iii) apply to any Alternate Currency Revolving Loan, the respective Alternate Currency Revolving Loan Borrower may, in lieu of taking the actions described above, maintain such Alternate Currency Revolving Loan outstanding, in which case the applicable Euro Rate shall be determined on the basis provided in the proviso appearing in the definition of the relevant Euro Rate, unless the maintenance of such Alternate Currency Revolving Loan outstanding on such basis would not stop the conditions described in Section 2.11(a)(iii) from existing (in which case the actions described above, without giving effect to the proviso, shall be required to be taken) and (ii) if more than one Bank Lender is affected at any timetime as described above in this clause (b), then all affected Banks Lenders must be treated in the same way pursuant to this Section 1.10(b2.11(b).
(c) If at any time after the date of this Agreement any Bank Lender determines that the introduction of or any change in (which introduction or change shall have occurred after the Effective Date) any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Commitment Lender’s Commitments hereunder or its obligations hereunder, then the Borrowers shall U.S. Borrower, the U.S. Subsidiary Borrower and the Canadian Revolving Loan Borrowers, as applicable, agree to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s reasonable good faith determination of compensation owing under this Section 1.10(c2.11(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.11(c), will give prompt written notice thereof to the affected Borrowers, which notice shall show in reasonable detail the basis for calculation of such additional amountsamounts and shall, providedabsent manifest error, howeverbe final and conclusive and binding on all the parties hereto. In addition, each such Lender, upon determining that failure the circumstances giving rise to give any such notice shall not release or diminish any obligation the payment of the Borrowers to pay additional amounts pursuant to this Section 1.10(c2.11(c) upon receipt cease to exist, will give prompt written notice thereof to the U.S. Borrower.
(d) If any Lender shall in good faith determine (which determination shall, absent manifest error, be final and conclusive and binding on all parties hereto) at any time that such Lender is required to maintain reserves (including, without limitation, any marginal, emergency, supplemental, special or other reserves required by applicable law) which have been established by any Federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body with jurisdiction over such Lender (including any branch, Affiliate or funding office thereof) in respect of any Euro Rate Loans or any category of liabilities which includes deposits by reference to which the interest rate on any Euro Rate Loan is determined or any category of extensions of credit or other assets which includes loans of the same or similar type as any Euro Rate Loans, then, unless such reserves are already being charged for pursuant to Section 2.11(a)(ii), such Lender shall promptly notify the U.S. Borrower or the U.S. Subsidiary Borrower, as applicable, in writing specifying the additional amounts required to indemnify such Lender against the cost of maintaining such reserves (such written notice to provide in reasonable detail a computation of such noticeadditional amounts) and the U.S. Borrower or the U.S. Subsidiary Borrower, as applicable, shall, and shall be obligated to, pay to such Lender such specified amounts as additional interest at the time that the U.S. Borrower or the U.S. Subsidiary Borrower, as applicable, is otherwise required to pay interest in respect of such Euro Rate Loans or, if later, on written demand therefor by such Lender.
(e) The Borrowers shall not be obligated to pay amounts under this Section 2.11 for which compensation is determined pursuant to the definition of Mandatory Costs payable under Section 2.09(e) and Section 2.09(f).
Appears in 2 contracts
Samples: Credit Agreement (Host Hotels & Resorts, Inc.), Credit Agreement (Host Hotels & Resorts L.P.)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change since the date of this Agreement in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, Lender pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances since the date of this Agreement affecting such Bank, the London interbank Eurodollar market Lender or the domestic interbank Eurodollar market or the position of such Bank Lender in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers Borrower shall pay to such BankLender, promptly upon its within 15 days of such Lender's written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion Lender reasonably shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a as set forth in such written notice request as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, provided that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Bank Lender determines that the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such BankLender's portion of the Total Commitment Commitments hereunder or its obligations hereunder, then the Borrowers Borrower shall pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such BankLender's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation .
(d) The provisions of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice1.10 are subject to Section 13.15 (to the extent same is applicable in accordance with the terms thereof).
Appears in 2 contracts
Samples: Credit Agreement (Universal Compression Inc), Credit Agreement (Universal Compression Holdings Inc)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORLIBO Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate LIBOR Loan because of (x) any change since the Effective Date (or the date of this Agreement such Lender became a Lender hereunder, if later) in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank of the principal of or interest on the Loans or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B1) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR LIBO Rate, or IBOR and/or (y2) any change subjecting any Recipient to any Taxes (except for Excluded Taxes and any Indemnified Taxes) on its loans, loan principal, letters of credit, commitments, or other circumstances since the date of this Agreement affecting such Bankobligations, the London interbank Eurodollar market or the domestic interbank Eurodollar market its deposits, reserves, other liabilities or the position of such Bank in either such marketcapital attributable thereto; or
(iii) at any time, that the making or continuance of any Fixed Rate LIBOR Loan has been made (xA) unlawful by any law or governmental rule, regulation or order, (yB) impossible by compliance by any Bank Lender in good faith with any governmental request from a Governmental Authority (whether or not having force of law) or (zC) impracticable as a result of a contingency contingency, other than with respect to a tax matter not otherwise provided for in this Section 2.10, occurring after the Effective Date or since the date of this Agreement such Person becomes a Lender, if later, which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar marketgenerally; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer not be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any the Notice of Borrowing or any Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate LIBOR Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its within 10 Business Days after written demand thereforby such Lender setting forth in reasonable detail such increased cost or reduction, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to will compensate such Bank Lender for such increased costs cost or reductions reduction in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, and stating that such Lender is charging such costs to its borrowers generally pursuant to its internal policies submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as reasonably possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate LIBOR Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the respective Borrower may (may, and in the case of a Fixed Rate LIBOR Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), the Borrower shall) , either (xi) if the affected Fixed Rate LIBOR Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (yii) if the affected Fixed Rate LIBOR Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate LIBOR Loan into a Base Rate Loan, ; provided that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender determines that after the Effective Date (or the date of this Agreement any Bank determines that such Lender became a Lender hereunder, if later) the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacyadequacy or liquidity requirements, or any change in interpretation or administration thereof by any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital or liquidity required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Lender’s Commitment hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its within 10 Business Days after written demand thereforby such Lender setting forth in reasonable detail such increased cost or reduction in the rate of return, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capitalcapital or liquidity. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, ; provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts, ; provided, howeverfurther, that, notwithstanding anything in this Agreement to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III shall, in each case, be deemed to be a change after the Effective Date in a requirement of law or government rule, regulation or order, regardless of the date enacted, adopted, issued or implemented (including for purposes of this Section 2.10).
(d) Notwithstanding the foregoing, in making its determination regarding any increase described in Section 2.10(a)(ii) or Section 2.10(c), each Lender shall treat the Borrower the same as all similarly situated borrowers, as determined by such Lender in its reasonable discretion. Each Lender agrees that failure to give any such notice it will not claim, and that it shall not release or diminish be entitled to claim, from the Borrower the payment of any obligation of the Borrowers amounts referred to pay additional amounts pursuant in this section (i) if it is not generally claiming similar compensation from its other similar customers in similar circumstances and (ii) unless the relevant introduction or change affects all banks and other financial institutions substantially similar to such Lender having regard to the size, business activities and regulatory capital of such banks and other financial institutions, but excluding differences based solely on the residency of Persons controlling such banks or other financial institutions.
(e) It is understood that this Section 1.10(c2.10 shall not apply to Excluded Taxes or Indemnified Taxes.
(f) upon receipt With respect to any Lender’s claim for compensation under this Section 2.10, the Borrower shall not be required to compensate such Lender for any amount incurred if such Lender notifies the Borrower of the event that gives rise to such noticeclaim more than 180 days after such event; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (AdvancePierre Foods Holdings, Inc.), Term Loan Credit Agreement (AdvancePierre Foods Holdings, Inc.)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOR“LIBO Rate”; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate LIBOR Loan because of (x) any change since the Closing Date (or the date of this Agreement such Lender became a Lender hereunder, if later) in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank of the principal of or interest on the Loans or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B1) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR LIBO Rate, or IBOR and/or (y2) any change subjecting any Recipient to any Taxes (except for Excluded Taxes and any Indemnified Taxes) on its loans, loan principal, letters of credit, commitments, or other circumstances since the date of this Agreement affecting such Bankobligations, the London interbank Eurodollar market or the domestic interbank Eurodollar market its deposits, reserves, other liabilities or the position of such Bank in either such marketcapital attributable thereto; or
(iii) at any time, that the making or continuance of any Fixed Rate LIBOR Loan has been made (xA) unlawful by any law or governmental rule, regulation or order, (yB) impossible by compliance by any Bank Lender in good faith with any governmental request from a Governmental Authority (whether or not having force of law) or (zC) impracticable as a result of a contingency contingency, other than with respect to a tax matter not otherwise provided for in this Section 2.10, occurring after the Closing Date or since the date of this Agreement such Person becomes a Lender, if later, which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar marketgenerally; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer not be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or any Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate LIBOR Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its such Lender’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, and stating that such Lender is charging such costs to its borrowers generally pursuant to its internal policies, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as reasonably possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate LIBOR Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the respective Borrower may (may, and in the case of a Fixed Rate LIBOR Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), the Borrower shall) , either (xi) if the affected Fixed Rate LIBOR Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (yii) if the affected Fixed Rate LIBOR Loan is then outstanding, upon at least three Business Days' ’ written notice by the Borrower to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate LIBOR Loan into a Base Rate Loan, ; provided that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender determines that after the Closing Date (or the date of this Agreement any Bank determines that such Lender became a Lender hereunder, if later) the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Lender’s Commitment hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, ; provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts, ; provided, howeverfurther, that, notwithstanding anything in this Agreement to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III shall, in each case, be deemed to be a change after the Closing Date in a requirement of law or government rule, regulation or order, regardless of the date enacted, adopted, issued or implemented (including for purposes of this Section 2.10).
(d) It is understood that failure to give any such notice this Section 2.10 shall not release apply to Excluded Taxes or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such noticeIndemnified Taxes.
Appears in 2 contracts
Samples: Term Loan Credit Agreement, Term Loan Credit Agreement (Jill Intermediate LLC)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of clause (i) below, the Administrative Agent or (y) in the case of clauses (ii) and (iii) below, any Bank Lender, shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agenthereto):
(i) on any Interest Determination Date Date, that, by reason of any changes arising after the date of this Agreement Effective Date affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan Eurodollar Loans because of (x) any change since the date of this Agreement in any applicable law or law, governmental rule, regulation, orderguideline, guideline order or request (whether or not having the force of law) ), or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, orderguideline, guideline order or request, such as, for example, but not limited to to, (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the such Eurodollar Loans or any other amounts payable hereunder (except for changes in the rate of with respect to any tax imposed on, measured by or determined by reference to, the net income or income, net profits of such Bank, Lender or any franchise tax imposed in lieu thereof pursuant to the laws of the jurisdiction in which it such Lender is organized organized, or in which its such Lender’s principal office or applicable lending office is located or any subdivision thereof or therein), provided, however, that the Borrower’s obligations to pay any additional amounts claimed under this Section 1.10(a)(ii)(x)(A) shall be subject to the provisions contained in Section 4.04(c); provided further that taxes that are otherwise addressed by Section 4.04 are not subject to a claim under this Section 1.10 or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances arising since the date of this Agreement affecting such BankLender, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such marketmarket (whether or not such Lender was a Lender at the time of such occurrence, but subject to the last sentence of Section 13.07(j)); or
(iii) at any timetime since the Effective Date, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) become unlawful by compliance by such Lender with any law or law, governmental rule, regulation regulation, guideline or order, order (y) impossible by compliance by any Bank in good faith or would conflict with any governmental rule, regulation, guideline, request (whether or order not having the force of law) law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawful), or (z) has become impracticable as a result of a change or contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, Agent in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower Borrower, which written notice shall set forth such Lender’s (or Borrowers andthe Administrative Agent’s, as the case may be) basis for asserting its rights under this Section 1.10(a) and the calculation, in reasonable detail, of any such additional amounts claimed hereunder, and (except in the case of clause (i)) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter Thereafter, (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees, subject to the provisions of Section 13.18 (to the extent applicable), to pay to such BankLender, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder but without duplication of any payments due under Section 4.04 (a with the written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereofLender, submitted to the affected Borrowers Borrower by such Bank shallLender in accordance with the foregoing to be, absent manifest error, be final and final, conclusive and binding on upon all the parties hereto, although the failure to give any such notice shall not release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 1.10(a) upon the subsequent receipt of such notice) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may at its sole option (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in pursuant to Section 1.10(a)(iii) ), the Borrower shall) either (xi) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversionBorrowing, cancel the respective said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that such the Borrower was notified by the affected Bank or the Administrative Agent a Lender pursuant to Section 1.10(a)(ii) or (iii) )), or (yii) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written ’ notice to the Administrative Agent, require the affected Bank Lender to convert each such Fixed Rate Eurodollar Loan into a Base Rate LoanLoan (which conversion, in the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that, that if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any time Lender shall have determined after the date of this Agreement any Bank determines Effective Date that the introduction adoption or effectiveness after the Effective Date of or any change in any applicable law law, rule or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning regulation regarding capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agencyagency charged with the interpretation or administration thereof, will have the effect of increasing the amount of capital required or expected to be maintained compliance by such Bank Lender or any corporation controlling such Bank based Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the existence such Lender’s or such other corporation’s capital or assets as a consequence of such Bank's portion of the Total Lender’s Commitment or Commitments hereunder or its obligations hereunderhereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender’s or such other corporation’s policies with respect to capital adequacy), then from time to time, upon written demand by such Lender (with a copy to the Borrowers shall Administrative Agent), accompanied by the notice referred to in the last sentence of this clause (c), the Borrower agrees, subject to the provisions of Section 13.18 (to the extent applicable), to pay to such Bank, promptly upon its written demand therefor, Lender such additional amount or amounts as shall be required to will compensate such Bank Lender or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capitalcorporation. In Each Lender, upon determining such additional amounts, each Bank will act reasonably and in good faith that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender’s basis for asserting its rights under this Section 1.10(c) and will use averaging and attribution methods which are reasonablethe calculation, provided that in reasonable detail, of such Bank's additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower’s obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender’s reasonable good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected Borrowers, which notice shall show the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 2 contracts
Samples: Credit Agreement (EnerSys), Second Lien Credit Agreement (EnerSys)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (xA) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A1) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for (x) Taxes with respect to which additional amounts are paid pursuant to Section 4.04 or would be payable but for the failure to provide the forms required to be provided in Section 4.04(b) or (y) changes in the rate of tax on, or determined by reference to, the net income or net profits of such Bank, Lender pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B2) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (yB) other circumstances arising since the date of this Agreement Effective Date affecting such BankLender, the London interbank Eurodollar market or the domestic interbank Eurodollar eurodollar market or the position of such Bank Lender in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (xA) unlawful by any law or governmental rule, regulation or order, (yB) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (zC) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or any Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its such Lender’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the respective Borrower may (may, and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), the Borrower shall) , either (xi) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (yii) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, ; provided that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Effective Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Lender’s Commitment hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, ; provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 2 contracts
Samples: Credit Agreement (NightHawk Radiology Holdings Inc), Credit Agreement (NightHawk Radiology Holdings Inc)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause clauses (i) and (iv) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement Effective Date affecting the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORthe Eurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan Eurodollar Loans because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to (A) a change in the basis of taxation of payment payments to any Bank a Lender of the principal of or interest on the Loans or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such Bank, pursuant to the laws of Lender imposed by the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) located), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances since the date of this Agreement affecting such BankLender, the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such marketmarket (whether or not such Lender was a Lender at the time of such occurrence); or
(iii) at any timetime after the Effective Date, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, order (y) impossible by compliance by any Bank in good faith or would conflict with any governmental rule, regulation, guideline, request (whether or order not having the force of law) law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawful), or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers Borrower, and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (xw) in the case of clause (i) above, LIBOR Rate in the event Eurodollar Loans and/or IBOR Rate Loansare so affected, as the case may be, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrowers Holdings, any affected Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers each Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by such Borrower, (yx) in the case of clause (ii) above, the respective Borrower or Borrowers shall agrees, subject to the provisions of Section 13.24 (to the extent applicable), to pay to such BankLender, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a with the written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereofLender, submitted to the affected respective Borrower or Borrowers by such Bank shallLender in accordance with the foregoing to be, absent manifest error, be final and conclusive and binding on all the parties hereto, although the failure to give any such notice shall not release or diminish any of the respective Borrower’s or Borrowers’ obligations to pay additional amounts pursuant to this Section 2.10(a) upon the subsequent receipt of such notice), and (zy) in the case of clause (iii) above, the respective Borrower or Borrowers shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii2.10(a)(ii) or (iii), the respective affected Borrower may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii2.10(a)(iii) shall) either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially (or pursuant to a conversion), cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, in the case of a Eurodollar Loan, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate LoanLoan (which conversion, in the case of the circumstance described in Section 2.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender shall have determined after the date of this Agreement any Bank determines Effective Date that the introduction adoption or effectiveness after the Effective Date of or any change in any applicable law law, rule or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning regulation regarding capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agencyagency charged with the interpretation or administration thereof, will have the effect of increasing the amount of capital required or expected to be maintained compliance by such Bank Lender or any corporation controlling such Bank based Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the existence such Lender’s or such other corporation’s capital or assets as a consequence of such Bank's portion of the Total Lender’s Commitment or Commitments hereunder or its obligations hereunderhereunder to each Borrower to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender’s or such other corporation’s policies with respect to capital adequacy), then from time to time, upon written demand by such Lender (with a copy to the Borrowers shall Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), such Borrower agrees, subject to the provisions of Section 13.24 (to the extent applicable), to pay to such Bank, promptly upon its written demand therefor, Lender such additional amount or amounts as shall be required to will compensate such Bank Lender or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capitalcorporation. In Each Lender, upon determining such additional amounts, each Bank will act reasonably and in good faith that any additional amounts will be payable pursuant to this Section 2.10(c), will give prompt written notice thereof to the relevant Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender’s basis for asserting its rights under this Section 2.10(c) and will use averaging and attribution methods which are reasonablethe calculation, provided that in reasonable detail, of such Bank's additional amounts claimed hereunder, although (subject to the provisions of Section 13.24 (to the extent applicable)) the failure to give any such notice shall not release or diminish such Borrower’s obligations to pay additional amounts pursuant to this Section 2.10(c) upon the subsequent receipt of such notice. A Lender’s good faith determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected Borrowers, which notice shall show the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 2 contracts
Samples: Debtor in Possession Credit Agreement (Cooper-Standard Holdings Inc.), Debt Agreement (Cooper-Standard Holdings Inc.)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, subject to Section 1.13, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate such Lender's agreement to make or its making, funding or maintaining any Eurodollar Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such Bank, Lender pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances arising since the date of this Agreement Effective Date affecting such BankLender, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such market; or
(iii) at any time, that the making or continuance by such Lender or its applicable lending office of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its such Lender's written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (may, and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) ), the Borrower shall) , either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, provided that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Effective Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, or compliance therewith by such Lender (or its applicable lending office) will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such BankLender's portion of the Total Commitment hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such BankLender's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 2 contracts
Samples: Credit Agreement (First Horizon Pharmaceutical Corp), Credit Agreement (First Horizon Pharmaceutical Corp)
Increased Costs, Illegality, etc. (a) In the event that any Bank shall --------------------------------- have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement Effective Date affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank of the principal of or interest on the Loans such Eurodollar Loan or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such Bank, or any franchise tax based on the net income or net profits of a Bank, in either case pursuant to the laws of the jurisdiction in which it such Bank is organized or in which its such Bank's principal office or applicable lending office is located or any subdivision thereof or therein) ), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances since the date of this Agreement Effective Date affecting such Bank, the London interbank Eurodollar market Bank or the domestic interbank Eurodollar market or the position of such Bank in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Borrowing, Notice of Conversion or notice given under Section 1.09 delivered by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers Borrower shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Bank agrees that if it gives notice to the Borrower of any of the events described in clause (i) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Bank, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Bank, the obligations of such Bank to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein shall be reinstated. In addition, if the Administrative Agent gives notice to the Borrower that the events described in clause (i) above cease to exist, then the obligations of the Banks to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein (but subject to clause (iii) above) also shall be reinstated.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) the Borrower shall) either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, provided that, if more than one Bank is affected at any time, then all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Bank determines that that, after the Effective Date, the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of lawlaw and including, without limitation, those announced or published prior to the Effective Date) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank or any corporation controlling such Bank based on the existence of such Bank's portion of the Total Commitment Commitments hereunder or its obligations hereunder, then the Borrowers Borrower shall pay to such Bank, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's reasonable good faith determination of -------- compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show the basis for calculation of such additional amounts. In addition, providedeach such Bank, however, upon determining that failure the circumstances giving rise to give any such notice shall not release or diminish any obligation the payment of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such noticecease to exist, will give prompt written notice thereof to the Borrower.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause clauses (i), (iii)(z) and (iv) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London relevant interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOR; orEuro Rate;
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Euro Rate Loan which such Bank deems to be material because of (x) any change since the date of this Agreement in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, and including the introduction of any new law or governmental rule, regulation, order, guideline or requestrequest (a "Change in Law"), such as, for example, but not limited to which (A) a change in changes the basis of taxation of payment to any Bank of the principal of or interest on the Loans such Euro Rate Loan or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it such Bank is organized or in which its such Bank's principal office or applicable lending office is located or any subdivision thereof or therein) or therein and Taxes for which a payment is required pursuant to Section 4.04(a)), (B) a change in changes official reserve requirements, requirements (but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate) and/or (yC) imposes any other circumstances since the date of this Agreement condition affecting such Bank, the London interbank Eurodollar market Bank or the domestic relevant interbank Eurodollar market or the position of such Bank in either such market; or;
(iii) at any time, that the making or continuance of any Fixed Euro Rate Loan has been made (x) unlawful by any law or governmental rule, regulation or orderChange in Law, (y) impossible by compliance by any Bank in good faith with any governmental request made after the date of this Agreement (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Change in Law which materially and adversely affects the London relevant interbank Eurodollar market or market;
(iv) at any time that any Alternate Currency is not available in sufficient amounts, as determined in good faith by the domestic interbank Eurodollar marketAdministrative Agent, to fund any Borrowing of Revolving Loans denominated in such Alternate Currency; or
(v) at any time, that such Bank shall incur any Mandatory Costs; then, and in any such event, such Bank (or the Administrative Agent, in the case of clause (i), (iii)(z) or (iv) above) shall promptly give written notice (or, in the case of Dollar Loans incurred by GWR or GIMC, by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause clauses (i), (iii)(z) and (iv) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur). Thereafter (xv) in the case of clause (i) above, LIBOR Rate (A) in the event that Eurodollar Loans and/or IBOR Rate Loansare so affected, as the case may be, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers a Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by such Borrower and (B) in the event that any Foreign Currency Loans are so affected, the applicable Euro Rate shall be determined on the basis provided in the last sentence of the definition of such Euro Rate, (yw) in the case of clause (ii) above, the respective Borrowers applicable Borrower shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole reasonable discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing in reasonable detail the basis for the calculation thereof, based on averaging and attribution methods among customers which are reasonable, submitted to the affected Borrowers respective Borrower by such Bank in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and ), (zx) in the case of clause (iii) above, the respective Borrowers applicable Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law, (y) in the case of clause (iv) above, Revolving Loans in the affected Foreign Currency (other than any such Revolving Loans which have theretofore been funded) shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing given by a Borrower with respect to such Revolving Loans which have not yet been incurred shall be deemed rescinded by such Borrower and (z) in the case of clause (v) above, the applicable Borrower shall pay to such Bank, upon written demand therefor, such Mandatory Costs.
(b) At any time that any Fixed Euro Rate Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective applicable Borrower may (and in the case of a Fixed Euro Rate Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (x) if the affected Fixed Euro Rate Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent written notice (or, in the case of Dollar Loans incurred by GWR and GIMC, telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Euro Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative AgentAgent and the affected Bank, and subject to Section 4.02(j), (A) in the case of a Eurodollar Loan, require the affected Bank to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan or repay such Eurodollar Loan in full and (B) in the case of any Foreign Currency Loan, repay such Foreign Currency Loans in full; provided thatthat (i) if the circumstances described in Section 1.10(a)(iii) apply to any Foreign Currency Loan, the applicable Borrower may, in lieu of taking the actions described above, maintain such Foreign Currency Loans outstanding, in which case the applicable Euro Rate shall be determined on the basis provided in the last sentence of the definition of the applicable Euro Rate, unless the maintenance of such Foreign Currency Loans outstanding on such basis would not stop the conditions described in Section 1.10(iii) from existing (in which case the actions described above, without giving effect to the proviso, shall be required to be taken) and (ii) if more than one Bank is affected at any time, then all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time Bank shall have determined that, after the date hereof, the adoption or effectiveness of this Agreement any Bank determines that the introduction of or any change in any applicable law law, rule or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agencyagency charged with the interpretation or administration thereof, will have the effect of increasing the amount of capital required or expected to be maintained compliance by such Bank or any corporation controlling such Bank based with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the existence such Bank's or such other corporation's capital or assets as a consequence of such Bank's portion of the Total Commitment or Commitments or Loans hereunder or its obligations hereunderhereunder to a level below that which such Bank or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Bank's or such other corporation's policies with respect to capital adequacy), then from time to time, upon written demand by such Bank (with a copy to the Borrowers Administrative Agent), accompanied by the notice referred to in the penultimate sentence of this clause (c), GWR (or, in the case of any Loan, the applicable Borrower) shall pay to such Bank, promptly upon its written demand therefor, Bank such additional amount or amounts as shall be required to will compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capitalreduction. In determining such additional amounts, each Bank will act reasonably and in good faith and will use reasonable averaging and attribution methods which are reasonable, provided that such Bank's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties heretomethods. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to GWR (a copy of which shall be sent by such Bank to the affected BorrowersAdministrative Agent), which notice shall show set forth in reasonable detail the basis for of the calculation of such additional amounts, provided, however, that although the failure to give any such notice shall not release or diminish any obligation of the Borrowers GWR's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Bank's reasonable good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto.
(d) In the event that any Bank shall in good faith determine (which determination shall, absent manifest error, be final and conclusive and binding on all parties hereto) at any time that such Bank is required to maintain reserves (including, without limitation, any marginal, emergency, supplemental, special or other reserves required by applicable law) which have been established by any Federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body with jurisdiction over such Bank (including any branch, Affiliate or funding office thereof) in respect of any Foreign Currency Loans or any category of liabilities which includes deposits by reference to which the interest rate on any Foreign Currency Loan is determined or any category of extensions of credit or other assets which includes loans by a non-United States office of any Bank to non-United States residents, then, unless such reserves are included in the calculation of the interest rate applicable to such Foreign Currency Loans or in Section 1.10(a)(ii), such Bank shall promptly notify the applicable Borrower or Borrowers in writing specifying the additional amounts required to indemnify such Bank against the cost of maintaining such reserves (such written notice to provide in reasonable detail a computation of such additional amounts) and the applicable Borrower or Borrowers shall, and shall be obligated to, pay to such Bank such specified amounts as additional interest at the time that the applicable Borrower is otherwise required to pay interest in respect of such Foreign Currency Loan or, if later, on written demand therefor by such Bank.
Appears in 1 contract
Samples: Credit Agreement (Gleason Corp /De/)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of clause (i) below, the Administrative Agent or (y) in the case of clauses (ii) and (iii) below, any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agenthereto):
(i) on any date for determining the Eurodollar Rate for any Interest Determination Date Period that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR Eurodollar Rate or IBOR; orthe making or continuance of any Eurodollar Loan has become impracticable as a result of a contingency occurring after the Closing Date;
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan Eurodollar Loans because of (x) any change since the date of this Agreement Closing Date in any applicable law or law, governmental rule, regulation, order, guideline or request order (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for exampleorder) (including, but not limited to (A) to, a change in the basis of taxation of payment payments to any Bank a Lender of the principal of or interest on the Loans or any other amounts payable hereunder (except for (i) changes in the rate of tax on, or determined by reference to, the net income or net profits of such Bank, pursuant to the laws of Lender imposed by the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or and (ii) any subdivision thereof or thereintaxes for which the Borrowers are not liable to pay under Section 3.04) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate) and/or (y) other circumstances since affecting the date of this Agreement affecting such Bank, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) become unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank such Lender in good faith with any law, governmental request rule, regulation, guideline or order (whether or would conflict with any such governmental rule, regulation, guideline or order not having the force of law) or (z) impracticable as a result of a contingency occurring after law but with which such Lender customarily complies even though the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar marketfailure to comply therewith would not be unlawful); then, and in any such event, such Bank Lender (or the Administrative Agent, Agent in the case of clause (i) above) shall promptly (x) on such date and (y) within ten Business Days of the date on which such event no longer exists give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrowers, (y) in the case of clause (ii) above, the respective Borrowers shall pay to such BankLender, promptly upon its within 10 Business Days after the Borrowers’ receipt of written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole reasonable discretion shall determinedetermine after consultation with the Borrowers) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing describing the basis for such increased costs and showing the calculation thereof, submitted to the affected Borrowers by such Bank Lender shall, absent manifest error, be final and conclusive and binding on upon all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower Borrowers may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in pursuant to Section 1.10(a)(iii) shall), the Borrowers shall within the time period required by law) either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversionBorrowing, cancel the respective said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that such Borrower was the Borrowers were notified by the affected Bank or the Administrative Agent a Lender pursuant to Section 1.10(a)(ii) or (iii) ), or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written ’ notice to the Administrative Agent, require the affected Bank Lender to convert each such Fixed Rate Eurodollar Loan into a Base Rate LoanLoan (which conversion, provided thatin the case of the circumstances described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan (or such earlier date as shall be required by applicable law)); provided, that if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Bank determines Lender shall have determined that the introduction adoption or effectiveness of or any change in any applicable law law, rule or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agencyagency charged with the interpretation or administration thereof, will in each case after the Closing Date, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency first made after the Closing Date, has or would have the effect of increasing reducing the amount rate of return on such Lender’s or its parent corporation’s capital required or expected assets as a consequence of its commitments or obligations hereunder to be maintained a level below that which such Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender’s or its parent corporation’s policies with respect to capital adequacy), then from time to time, within 10 Business Days after demand by such Bank or any corporation controlling such Bank based on Lender (with a copy to the existence of such Bank's portion of the Total Commitment or its obligations hereunderAdministrative Agent), then the Borrowers shall pay to such Bank, promptly upon its written demand therefor, Lender such additional amount or amounts as shall be required to will compensate such Bank Lender or such other its parent corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capitalreduction. In Each Lender, upon determining such additional amounts, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected Borrowers, which notice shall show describe the basis for such claim and set forth in reasonable detail the calculation of such additional amounts, provided, however, that although the failure to give any such notice shall not release or diminish any obligation of the Borrowers Borrowers’ obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and final, conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Rate Determination Date that, by reason of any changes arising after the date of this Agreement Closing Date affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank any Lender shall incur increased costs or reductions reduction in the amounts received or receivable hereunder with respect to any Fixed Eurodollar Rate Loan because of (x) any change since the date Closing Date, in the case of this Agreement any Eurodollar Rate Revolving Loan or Eurodollar Rate Term Loan, since the First Restatement Date, in the case of any Eurodollar Rate Additional Term Loan, since the Second Restatement Date, in the case of any Eurodollar Rate Supplemental Revolving Loan or any Eurodollar Rate D Tranche Term Loan and since the Third Restatement Date, in the case of any Eurodollar Rate E Tranche Term Loan, in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment payments to any Bank Lender of the principal of or interest on the Loans Obligations or any other amounts payable hereunder (except for (a) changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of Lender imposed by the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or thereinand (b) United States withholding taxes, which shall be governed by the provisions of Section 3.11) or (B) a change in official reserve requirements, requirements (but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate) and/or (y) other circumstances since the date Closing Date, in the case of this Agreement any Revolving Lender or Term Lender, since the First Restatement Date, in the case of any Additional Lender, since the Second Restatement Date, in the case of any Supplemental Revolving Lender or any D Tranche Lender and since the Third Restatement Date, in the case of any E Tranche Lender, affecting such Bank, the London interbank Eurodollar market Lender or the domestic interbank Eurodollar market or the position of such Bank Lender in either such marketmarket (excluding, however, differences in a Lender's cost of funds from those of the Agent which are solely the result of credit differences between such Lender and the Agent); or
(iii) at any time, that the making or continuance of any Fixed Eurodollar Rate Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date Closing Date, in the case of this Agreement any Eurodollar Rate Revolving Loan or Eurodollar Rate Term Loan, since the First Restatement Date, in the case of any Eurodollar Rate Additional Term Loan, since the Second Restatement Date, in the case of any Eurodollar Rate Supplemental Revolving Loan or any Eurodollar Rate D Tranche Term Loan, and since the Third Restatement Date, in the case of any Eurodollar Rate E Tranche Term Loan, which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar marketin general; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Eurodollar Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion or Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Eurodollar Rate Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers Borrower shall pay to such BankLender, promptly upon its written demand therefortherefore, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion Lender shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing the basis for the calculation thereofthereof in reasonable detail, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto; provided, however, that the failure to give any such notice (unless the respective Lender has intentionally withheld or delayed such notice, in which case the respective Lender shall not be entitled to receive additional amounts pursuant to this Section 2.13(a)(y) for periods occurring prior to the 180th day before the giving of such notice) shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 2.13(a)(y), and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b2.13(b) as promptly as possible and, in any event, within the time period required by law. In determining such additional amounts pursuant to clause (y) of the immediately preceding sentence, each Lender shall act reasonably and in good faith and will, to the extent the increased costs or reductions in amounts receivable relate to such Lender's loans in general and are not specifically attributable to a Loan hereunder, use averaging and attribution methods which are reasonable and which cover all loans similar to the Loans made by such Lender whether or not the loan documentation for such other loans permits the Lender to receive increased costs of the type described in this Section 2.13(a).
(b) At any time that any Fixed Eurodollar Rate Loan is affected by the circumstances described in Section 1.10(a)(ii2.13(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Eurodollar Rate Loan affected by the circumstances described in Section 1.10(a)(iii2.13(a)(iii) shall) either (xi) if the affected Fixed Eurodollar Rate Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.13(a)(ii) or (iii) ), cancel the respective Borrowing, or (yii) if the affected Fixed Eurodollar Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Eurodollar Rate Loan into a Base Prime Rate Loan, provided that, that if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.13(b).
(c) If at any time after the date of this Agreement any Bank determines that the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank or any corporation controlling such Bank based on the existence of such Bank's portion of the Total Commitment or its obligations hereunder, then the Borrowers shall pay to such Bank, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected Borrowers, which notice shall show the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, Lender pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances arising since the date of this Agreement Effective Date affecting such BankLender, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower shall, subject to Section 1.14, pay to such BankLender, promptly upon its such Lender's written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) the Borrower shall) either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was is notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, provided PROVIDED that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Effective Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such BankLender's portion of the Total Commitment Commitments hereunder or its obligations hereunder, then the Borrowers shall Borrower shall, subject to Section 1.14, pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided PROVIDED that such BankLender's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 1 contract
Samples: Credit Agreement (Hydrochem Industrial Services Inc)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agenthereto):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOR; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, as but not limited to to: (A) a change subjecting any Lender to any tax, duty or other charge with respect to any Loan, Notes or Letter of Credit, or its obligation to make such Loan or issue such Letter of Credit, or a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such Bank, Lender pursuant to the laws of the jurisdiction in which it such Lender is organized or in which its such Lender’s principal office or applicable lending office is located or located), but without duplication of any subdivision thereof or therein) increased costs with respect to Taxes which are addressed in Section 4.04, or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate, and/or (y) other circumstances arising since the date of this Agreement Initial Borrowing Date affecting such BankLender, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such market; or
(iiiii) at any time, that the making or continuance of any Fixed Rate Loan has been made (x) unlawful by any law or governmental rule, regulation or order, and/or (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market); then, and in any such event, such Bank (or the Administrative Agent, in the case of clause (i) above) Lender shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers Borrower, which written notice shall set forth such Lender’s basis for asserting its right under this Section 1.09(a) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise Borrower agrees to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers with respect to any affected Fixed Rate Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded, (y) in the case of clause (ii) above, the respective Borrowers shall pay to such BankLender, promptly upon its such Lender’s written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for and the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (zy) in the case of clause (iiiii) above, such Lender shall so notify the respective Borrowers Administrative Agent and the Borrower (and the Administrative Agent shall take one give notice thereof to the other Lenders) and thereafter the Commitment of such Lender shall be permanently reduced by an amount sufficient to alleviate such circumstance arising pursuant to clause (ii)(x) or (y) above, or shall be terminated in its entirety if all of such Lender’s Loans are so affected, and the actions specified Borrower shall prepay in Section 1.10(b) as promptly as possible full the affected Loans of such Lender, together with accrued and unpaid interest thereon and, in the event of a termination of such Lender’s Commitment, any eventaccrued and unpaid Commitment Commission which may be due to such Lender under this Agreement (and, within in the event all of such Lender’s Loans are being repaid, any other amounts which may be owing to such Lender hereunder), on either the last day of the then current Interest Period applicable to each such affected Loan (if such Lender may lawfully continue to maintain and fund such Loans to such day) or immediately (if such Lender may not lawfully continue to maintain and fund such Loans to such day). The Administrative Agent and each Lender (to the extent it continues to be a Lender hereunder) agree that if any of them gives notice to the Borrower of any of the events described in clause (ii) above, it shall promptly notify the Borrower and the Administrative Agent, if such event ceases to exist. If any such event described in clause (ii) above ceases to exist as to a Lender (to the extent it continues at such time period required by lawto be a Lender hereunder), the obligations of such Lender to make Loans on the terms and conditions contained herein shall to the extent of such Lender’s outstanding Loans and Commitments as in effect at such time, be immediately reinstated.
(b) At If any time Lender determines that any Fixed Rate Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (x) if the affected Fixed Rate Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert such Fixed Rate Loan into a Base Rate Loan, provided that, if more than one Bank is affected at any time, all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Bank determines that Effective Date the introduction or effectiveness of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, agency will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Commitment Lender’s Commitments hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that that, such Bank's Lender’s determination of compensation owing under this Section 1.10(c1.09(b) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c1.09(b), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
(c) If a Market Disruption Event occurs in relation to a Loan for any Interest Period, provided, however, then the rate of interest on each Lender's share of that failure to give any such notice Loan for the Interest Period shall not release or diminish any obligation be the percentage rate per annum which is the sum of:
(i) the Applicable Margin; and
(ii) the rate which is the arithmetic average of the Borrowers rates (rounded upward to pay additional amounts the nearest 1/16 of one percent) determined by the Reference Banks on the Interest Determination Date for such Interest Period to be that which expresses as a percentage rate per annum the cost to each such Reference Bank of funding its participation in that Loan for a period equivalent to such Interest Period from whatever source it may reasonably select; provided that (x) in the event that none or only one of the Reference Banks supplies a rate to the Administrative Agent as contemplated by this clause (ii), the rate for each Lender for such Interest Period shall be the rate determined on the Interest Determination Date for such Interest Period by such Lender to be that which expresses as a percentage rate per annum the cost to such Lender of funding its participation in that Loan for a period equivalent to such Interest Period from whatever source it may reasonably select, and (y) the rate provided by a Reference Bank or Lender pursuant to this Section 1.10(cclause (ii) upon receipt shall, absent manifest error, be final and conclusive and binding on all the parties hereto and shall not be disclosed to any other Lender and shall be held as confidential by the Administrative Agent and the Borrower.
(d) If a Market Disruption Event occurs and the Administrative Agent or the Borrower so requires, the Administrative Agent and the Borrower shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest. Any alternative basis agreed pursuant to the immediately preceding sentence shall, with the prior consent of all the Lenders and the Borrower, be binding on all parties. If no agreement is reached pursuant to this clause (d), the rate provided for in clause (c) above shall apply for the entire Interest Period.
(e) If any Reference Bank ceases to be a Lender under this Agreement, (x) it shall cease to be a Reference Bank and (y) the Administrative Agent shall, with the approval (which shall not be unreasonably withheld) of the Parent, nominate as soon as reasonably practicable another Lender to be a Reference Bank in place of such noticeReference Bank.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agentparties):
(i) on any date for determining the Eurodollar Rate for any Interest Determination Date thatPeriod, that by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan because by reason of (xA) any change since the date of this Agreement in any applicable law or governmental rule, regulation, order, guideline or request order (whether or not having the force of law) or in the any official interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to (Aorder) a change in the basis of taxation of payment to any Bank of the principal of or interest on the Loans or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or and/or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation case of the LIBOR or IBOR and/or (y) Eurodollar Rate Loans, other circumstances since the date of this Agreement affecting such Bank, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such marketmarket (such as, for example but not limited to, a change in official reserve requirements, but excluding reserve requirements which have been included in calculating the Eurodollar Rate for a given Interest Period specified in the definition of "Eurodollar Rate") or otherwise as to any Loan such Bank shall be subject to any tax, duty or other charge with respect to its Loans or there shall have been a change in the basis of taxation of payments to such Bank (or its applicable lending office) of the principal of or interest on its Loans or any other amounts due under this Agreement in respect of its Loans (except for changes in the rate of tax on the overall net income of such Bank or its applicable lending office imposed by the jurisdiction in which such Bank's principal executive office or lending office is located) such that the Eurodollar Rate shall not represent the effective cost to such Bank for funding or maintaining the affected Eurodollar Rate Loan; or
(iii) at any time, that the making or continuance of any Fixed Eurodollar Rate Loan has been made (x) become unlawful by any law or governmental rule, regulation or order, (y) impossible by as a result of compliance by any such Bank in good faith with any law, governmental request (whether rule, regulation, guideline or not having force of law) order, or (z) has become impracticable as a result of a contingency occurring after the date of this Agreement Agreement; or
(iv) any reserve, deposit or similar requirement is or shall be applicable, imposed or modified in respect of any Loans or commitments to make Loans (but excluding reserve requirements which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar markethave been included in calculating any interest rate with respect thereto); then, then and in any such event, such Bank (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected appropriate Borrower or Borrowers and, except in the case of clause (i) above, and to the Administrative Managing Agent of such determination (which notice the Administrative Managing Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur). Thereafter (xA) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers with respect to any affected Fixed Rate Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded, (y) in the case of clause clauses (ii) aboveand (iv), the respective Borrowers each Borrower shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to cause such Bank to receive interest with respect to its affected Loans at a rate per annum which shall be an amount equal to the applicable interest rate plus the Borrowing Margin then in effect, if any, with respect to such Loans plus such additional amounts as will compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as the effective cost to the additional amounts owed Bank to make or maintain such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers by such Bank shall, absent manifest error, be final and conclusive and binding on all the parties hereto) Loans and (zB) in the case of clause (iii) above, the respective Borrowers shall take one of the actions specified in Section 1.10(b2.9(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed of its Eurodollar Rate Loan is Loans are affected by any of the circumstances described in Section 1.10(a)(ii2.9(a)(i) or (iii), the respective relevant Borrower may (and in the case of a Fixed Eurodollar Rate Loan affected by the circumstances described in pursuant to Section 1.10(a)(iii2.9(a)(i) or (iii) shall) either ):
(xi) if the affected Fixed Eurodollar Rate Loan is then being Loans are yet to be made initially or pursuant to a conversionNotice of Borrowing, cancel either:
(A) withdraw the respective related Notice of Borrowing by giving the Administrative Managing Agent telephonic notice (confirmed in writing) notice thereof on the same date that such Borrower was notified by the affected any Bank or the Administrative Agent pursuant to Section 1.10(a)(ii2.9(a) or hereof, or
(iiiB) or borrow such Borrowing as a Prime Rate Loan; and
(yii) if the affected Fixed Eurodollar Rate Loan is or Loans are then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert such Fixed reborrow each Eurodollar Rate Loan into so affected on the next following Interim Maturity Date as a Base Prime Rate Loan, Loan or Prime Rate Loans; provided that, that if more than one Bank is affected at any time, then all affected Banks must be treated the same pursuant to this Section 1.10(b2.9(b). Until the Managing Agent notifies such Borrower that the circumstances described in Section 2.9(a)(i) or (iii) no longer exist, the obligations of the Banks to make Eurodollar Rate Loans, as the case may be, shall be suspended, but, subject to the other terms and conditions of this Agreement, the Banks' obligations to make Prime Rate Loans shall not be suspended.
(c) If at Promptly after giving any time after the date of this Agreement notice to any Borrower pursuant to Section 2.9(a), any Bank determines giving such notice will use its best efforts to designate one of its offices located at an address other than that set forth in Section 9.3 as the office from which its Pro Rata Share of any Borrowings will be made after such designation if such designation will avoid the need for, or reduce the amount of, any payment to which such Bank would otherwise be entitled pursuant to Section 2.9(a) and will not, in the sole discretion of such Bank, be otherwise disadvantageous to such Bank or contrary to its internal policies.
(d) Without limiting the foregoing, in the event that any Bank (an "Affected Bank") shall have determined that the introduction adoption of or any change in any applicable law law, treaty, or governmental (or quasi-governmental) rule, regulation, orderguideline or order regarding capital adequacy, guidelineor any change therein or in the interpretation or application thereof, or compliance by any Bank with any request or directive or request regarding capital adequacy (whether or not having the force of lawlaw and whether or not failure to comply therewith would be unlawful) concerning capital adequacy, or from any change in interpretation or administration thereof by any governmental authority, central bank or comparable agencygovernmental agency or body having jurisdiction (a "Change in Law"), will does or shall have the effect of increasing the amount of capital required or expected to be maintained by such Bank or any corporation controlling such Bank based reducing the rate of return on the existence of such Bank's portion capital as a consequence of the Total Commitment or its obligations hereunderhereunder to a level below that which such Bank could have achieved but for such adoption, change or compliance (taking into consideration such Bank's policies with respect to capital adequacy), then the Borrowers each Borrower shall from time to time, within five (5) Business Days after written notice and demand from such Bank, pay to such Bank, promptly upon its written demand therefor, such additional amounts as shall be required sufficient to compensate such Bank for the cost of such additional required capital to the extent not otherwise reflected in the calculation of the Prime Rate and Eurodollar Rate, as applicable, or such other corporation additional amount or amounts as will compensate such Bank for the such reduced rate of return, provided, however, that if (i) a Bank has advance knowledge of a Change in Law, (ii) such Bank is or becomes aware that such Change in Law will result in a determination of increased cost to under this Section 2.9(d) and (iii) the amount of such increased cost is determinable in advance, then such Bank shall use reasonable efforts to provide at least thirty (30) days (or such other corporation or the reduction in the rate shorter period when each of return to such Bank or such other corporation as a result of such increase of capital. In determining (i), (ii) and (iii) above are true) advance notice and demand for such additional amounts. A certificate as to the amount of such cost, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that submitted to such Borrower by such Bank's determination of compensation owing under this Section 1.10(c) , shall, absent manifest error, be final and final, conclusive and binding on for all purposes.
(e) In the parties hereto. Each Bankevent any Borrower shall be required to pay any increased cost to any Bank pursuant to the foregoing provisions of this Section 2.9, such Borrower shall be entitled, by so notifying the Managing Agent and such Bank within thirty (30) days after such Bank notifies such Borrower of any such increased cost, to arrange for the substitution of another lender (which shall be an Eligible Assignee) for such Bank within sixty (60) days thereafter pursuant to the relevant provisions of Section 9.8(c), whereupon, upon determining that any the effectiveness of such substitution, the affected Loans and the Loan Commitment and Project Commitments of such Bank shall be assigned to such assignee; provided, however, that:
(i) the Bank shall be entitled to withdraw its notice of increased taxes or costs within a period of thirty (30) days from the date of notice by such Borrower, whereupon such Borrower shall no longer be entitled to substitute for the Bank as described above;
(ii) in no event shall such Borrower be entitled to substitute for an Bank unless the net present value of the additional amounts will be cost to such Borrower (including closing costs) of such substitution is less than the net present value of the additional cost (including increased taxes and costs payable pursuant to this Section 1.10(c2.9) to such Borrower of maintaining such Loans of the Bank (discounted to the time in question using the same assumed rate of interest); and
(iii) in all events (other than that described in clause (i) above), will give prompt written notice thereof to such Borrower shall remain liable for the affected Borrowers, which notice shall show the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation increased taxes and costs of the Borrowers Bank for the period prior to pay additional amounts pursuant to this Section 1.10(c) upon receipt such prepayment of such noticethe Bank's Loans or the substitution of the assignee.
Appears in 1 contract
Samples: Loan Agreement (Kmart Corp)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change since the date of this Agreement in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans such Eurodollar Loan or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such BankLender, or any franchise tax based on the net income or profits of such Lender, in either case pursuant to the laws of the United States of America, the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) ), but without duplication of any amounts payable in respect of Taxes pursuant to Section 4.04(a), or (B) a change in official reserve requirements, requirements but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR and/or (y) other circumstances since the date of this Agreement affecting such Bank, the London interbank Eurodollar market Lender or the domestic interbank Eurodollar market or the position of such Bank Lender in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, and/or (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank ;
(or a) upon the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent subsequent receipt of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur. Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers with respect to any affected Fixed Rate Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded, (y) in the case of clause (ii) above, the respective Borrowers shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers by such Bank shall, absent manifest error, be final and conclusive and binding on all the parties heretonotice) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Lender, the obligations of such Lender to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein shall be reinstated.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and and, in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) ), shall) either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate LoanLoan on the earlier of the date required by law or the last day of the Interest Period applicable to such Eurodollar Loans, provided PROVIDED that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Bank Lender determines that the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, in each case introduced or changed after the date hereof, will have the effect of increasing the amount of capital required or expected requested to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such BankLender's portion of the Total Commitment Commitments hereunder or its obligations hereunder, then the Borrowers shall Borrower shall, subject to the provisions of Section 13.15 (to the extent applicable), pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided PROVIDED that such BankLender's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for and calculation of such additional amounts, provided, however, that although the failure to give any such notice shall not release or diminish any the Borrower's obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan which such Bank deems to be material because of (x) any change since the date of this Agreement in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or requestrequest (a “Change in Law”), such as, for example, but not limited to which (A) a change in changes the basis of taxation of payment to any Bank of the principal of or interest on the Loans such Eurodollar Loan or any other amounts payable hereunder (except for (I) changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, or any franchise tax based on the net income or profits of such Bank, in either case pursuant to the laws of the jurisdiction in which it such Bank is organized or in which its such Bank’s principal office or applicable lending office is located or any subdivision thereof or thereintherein and (II) or Taxes for which a payment is required pursuant to Section 4.04(a)), (B) a change in changes official reserve requirements, requirements (but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate) and/or (yC) imposes any other circumstances since the date of this Agreement condition affecting such Bank, Bank or the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or orderChange in Law, (y) impossible by compliance by any Bank in good faith with any governmental request made after the date of this Agreement (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Change in Law which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank (or the Administrative Agent, in the case of clause (i) above)) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers Borrower shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole reasonable discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, based on averaging and attribution methods among customers which are reasonable, submitted to the affected Borrowers respective Borrower by such Bank in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative AgentAgent and the affected Bank, require the affected Bank to convert such Fixed Rate Eurodollar Loan into a Base Rate LoanLoan or repay such Eurodollar Loan in full provided, provided that, that if more than one Bank is affected at any time, then all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time Bank shall have determined that, after the date hereof, the adoption or effectiveness of this Agreement any Bank determines that the introduction of or any change in any applicable law law, rule or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agencyagency charged with the interpretation or administration thereof, will have the effect of increasing the amount of capital required or expected to be maintained compliance by such Bank or any corporation controlling such Bank based with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the existence such Bank’s or such other corporation’s capital or assets as a consequence of such Bank's portion of the Total ’s Commitment or Commitments or Loans hereunder or its obligations hereunderhereunder to a level below that which such Bank or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Bank’s or such other corporation’s policies with respect to capital adequacy), then from time to time, upon written demand by such Bank (with a copy to the Borrowers Administrative Agent), accompanied by the notice referred to in the penultimate sentence of this clause (c), the Borrower shall pay to such Bank, promptly upon its written demand therefor, Bank such additional amount or amounts as shall be required to will compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capitalreduction. In determining such additional amounts, each Bank will act reasonably and in good faith and will use reasonable averaging and attribution methods which are reasonable, provided that such Bank's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties heretomethods. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected BorrowersBorrower (a copy of which shall be sent by such Bank to the Administrative Agent), which notice shall show set forth in reasonable detail the basis for of the calculation of such additional amounts, provided, however, that although the failure to give any such notice shall not release or diminish any obligation of the Borrowers Borrower’s obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such noticenotice except as provided in Section 1.14. A Bank’s reasonable good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOR“LIBO Rate”; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate LIBOR Loan because of (x) any change since the Effective Date (or the date of this Agreement such Lender became a Lender hereunder, if later) in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank of the principal of or interest on the Loans or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR LIBO Rate, or IBOR and/or (yB) any change subjecting any Recipient to any Taxes (except for Excluded Taxes and any Indemnified Taxes) on its loans, loan principal, letters of credit, commitments, or other circumstances since the date of this Agreement affecting such Bankobligations, the London interbank Eurodollar market or the domestic interbank Eurodollar market its deposits, reserves, other liabilities or the position of such Bank in either such marketcapital attributable thereto; or
(iii) at any time, that the making or continuance of any Fixed Rate LIBOR Loan has been made (xA) unlawful by any law or governmental rule, regulation or order, (yB) impossible by compliance by any Bank Lender in good faith with any governmental request from a Governmental Authority (whether or not having force of law) or (zC) impracticable as a result of a contingency contingency, other than with respect to a tax matter not otherwise provided for in this Section 2.10, occurring after the Effective Date or since the date of this Agreement such Person becomes a Lender, if later, which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar marketgenerally; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers Company and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x1) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer not be available until such time as the Administrative Agent notifies the Borrowers and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or any Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate LIBOR Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrowers, (y2) in the case of clause (ii) above, the respective Borrowers shall jointly and severally agree to pay to such BankLender, promptly upon its such Lender’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, and stating that such Lender is charging such costs to its borrowers generally pursuant to its internal policies, submitted to the affected Borrowers Company by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z3) in the case of clause (iii) above, the respective Borrowers shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as reasonably possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate LIBOR Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the respective Borrower may (Borrowers may, and in the case of a Fixed Rate LIBOR Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), the Borrowers shall) , either (xi) if the affected Fixed Rate LIBOR Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by the Company giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower the Company was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (yii) if the affected Fixed Rate LIBOR Loan is then outstanding, upon at least three Business Days' ’ written notice by the Company to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate LIBOR Loan into a Base Rate Loan; provided, provided that, that if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender determines that after the Effective Date (or the date of this Agreement any Bank determines that such Lender became a Lender hereunder, if later) the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Lender’s Revolving Loan Commitment hereunder or its obligations hereunder, then the Borrowers shall jointly and severally agree to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable; provided, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the affected BorrowersCompany, which notice shall show in reasonable detail the basis for calculation of such additional amounts, amounts provided, howeverfurther, that, notwithstanding anything in this Agreement to the contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III shall, in each case, be deemed to be a change after the Effective Date in a requirement of law or government rule, regulation or order, regardless of the date enacted, adopted, issued or implemented (including for purposes of this Section 2.10).
(d) It is understood that failure to give any such notice this Section 2.10 shall not release apply to Excluded Taxes or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such noticeIndemnified Taxes.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In If any Lender (or, with respect to clauses (i) and (iv) below, the event that any Bank Administrative Agent) shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agenthereto):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORthe respective Euro Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Euro Rate Loan because of (x) any change since arising after the date of this Agreement in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, Lender pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D requirements (except to the extent covered by Section 1.11(d) in respect of Alternate Currency Revolving Loans or included in the computation of the LIBOR Eurodollar Rate) or IBOR any special deposit, assessment or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (or its applicable lending office) and/or (y) other circumstances since the date of this Agreement affecting such Bank, the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such market; or
(iii) at any timetime after the date of this Agreement, that the making or continuance of any Fixed Euro Rate Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having the force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market; or
(iv) at any time that any Alternate Currency is not available in sufficient amounts to fund any Borrowing of Alternate Currency Revolving Loans requested pursuant to Section 1.01; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) or (iv) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected respective Borrower or Borrowers and, except in the case of clause clauses (i) and (iv) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (xw) in the case of clause (i) above, LIBOR Rate (A) if Eurodollar Loans and/or IBOR Rate Loansare so affected, as the case may be, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrowers Corporation and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers Corporation with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Corporation, and (B) if any Alternate Currency Revolving Loan is so affected, the relevant Euro Rate shall be determined on the basis provided in the proviso to the definition of the relevant Euro Rate, (yx) in the case of clause (ii) above, the respective Borrowers Borrower shall pay to such BankLender, promptly upon its written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion Lender shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers respective Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and ), (zy) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b1.11(b) as promptly as possible and, in any event, within the time period required by lawlaw and (z) in the case of clause (iv) above, Alternate Currency Revolving Loans (exclusive of Alternate Currency Revolving Loans which have theretofore been funded) shall no longer be available in the respective Alternate Currency or Alternate Currencies until such time as the Administrative Agent notifies the Alternate Currency Revolving Loan Borrowers and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing given by any Alternate Currency Revolving Loan Borrower with respect to such Alternate Currency Revolving Loans which have not been incurred shall be deemed rescinded by the respective Alternate Currency Revolving Loan Borrower.
(b) At any time that any Fixed Euro Rate Loan is affected by the circumstances described in Section 1.10(a)(ii1.11(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Euro Rate Loan affected by the circumstances described in Section 1.10(a)(iii1.11(a)(iii) shall) either (x) if the affected Fixed Euro Rate Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Euro Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require (A) in the case of a Eurodollar Loan, request the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the circumstances described in Section 1.11(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan (or such earlier date as shall be required by applicable law)) and (B) in the case of an Alternate Currency Revolving Loan, repay such Alternate Currency Revolving Loan in full; PROVIDED that (i) if the circumstances described in Section 1.11(a)(iii) apply to any Alternate Currency Revolving Loan, the respective Alternate Currency Revolving Loan Borrowers may, in lieu of taking the actions described above, maintain such Alternate Currency Revolving Loan outstanding, in which case the applicable Euro Rate shall be determined on the basis provided thatin the proviso to the definition of Euro Rate or Sterling Euro Rate, as the case may be, unless the maintenance of such Alternate Currency Revolving Loan outstanding on such basis would not stop the conditions described in Section 1.11(a)(iii) from existing (in which case the actions described above, without giving effect to the proviso, shall be required to be taken) and (ii) if more than one Bank Lender is affected at any timetime as described above in this clause (b), then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b1.11(b).
(c) If at any time after the date of this Agreement any Bank Lender determines that the introduction of or any change (which introduction or change shall have occurred after the date of this Agreement) in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the National Association of Insurance Commissioners ("NAIC") or any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such BankLender's portion of the Total Commitment Commitments hereunder or its obligations hereunder, then the Borrowers shall jointly and severally agree to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided PROVIDED that such BankLender's determination of compensation owing under this Section 1.10(c1.11(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c1.11(c), will give prompt written notice thereof to the affected Borrowers, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
(d) If any Lender shall in good faith determine (which determination shall, providedabsent manifest error, howeverbe final and conclusive and binding on all parties hereto) at any time that such Lender is required to maintain reserves (including, that failure without limitation, any marginal, emergency, supplemental, special or other reserves required by applicable law) which have been established by any Federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body with jurisdiction over such Lender (including any branch, Affiliate or funding office thereof) in respect of any Euro Rate Loans or any category of liabilities which includes deposits by reference to give which the interest rate on any such notice shall not release Euro Rate Loan is determined or diminish any obligation category of extensions of credit or other assets which includes loans of the same or similar type as any Euro Rate Loans, then, unless such reserves are already being charged for pursuant to Section 1.11(a)(ii), such Lender shall promptly notify the respective Borrower or Borrowers in writing specifying the additional amounts required to indemnify such Lender against the cost of maintaining such reserves (such written notice to provide in reasonable detail a computation of such additional amounts) and the respective Borrowers shall, and shall be obligated to, pay to such Lender such specified amounts as additional interest at the time that the respective Borrower or Borrowers are otherwise required to pay additional amounts pursuant to this Section 1.10(c) upon receipt interest in respect of such noticeEuro Rate Loans or, if later, on written demand therefor by such Lender.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change since the date of this Agreement in any applicable law or governmental (including any NAIC) rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof thereof, and including the introduction of any new law or governmental (including any NAIC) rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, Lender pursuant to the laws of the jurisdiction in which it such Lender is organized or in which its such Lender's principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances since the date of this Agreement affecting such BankLender, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental (including any NAIC) rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental (including any NAIC) request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any the Notice of Borrowing or any Notice of Conversion given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers Borrower shall pay to such BankLender, promptly upon its such Lender's written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall 12 determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder hereunder
(a written a) Written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, provided that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that the introduction of or any change in any applicable law or governmental (including any NAIC) rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authorityauthority (including the NAIC), central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such BankLender's portion of the Total Commitment Commitments hereunder or its obligations hereunder, then the Borrowers Borrower shall pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such BankLender's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank --------------------------------- Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause clauses (i) and (iv) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London relevant interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORthe relevant Euro Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Euro Rate Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the such Euro Rate Loans or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such Bank, Lender pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances arising since the date of this Agreement Effective Date affecting such BankLender, the London relevant interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such market; or
(iii) at any time, that the making or continuance of any Fixed Euro Rate Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London relevant interbank Eurodollar market or the domestic interbank Eurodollar market; or
(iv) at any time that any Foreign Currency is not available in sufficient amounts to fund any Borrowing of Foreign Currency Revolving Loans denominated in such Foreign Currency; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) or (iv) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause clauses (i) and (iv) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (xw) in the case of clause (i) above, LIBOR Rate (A) in the event that Eurodollar Loans and/or IBOR Rate Loansare so affected, as the case may be, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, and (B) in the event that any Foreign Currency Revolving Loans are so affected, the applicable Euro Rate shall be determined on the basis provided in the last sentence of the definition of EURIBOR or Sterling LIBOR, as the case may be, (yx) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees, subject to Section 1.16, to pay to such BankLender, promptly upon its such Lender's written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for therefor and the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and ), (zy) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law, and (z) in the case of clause (iv) above, Foreign Currency Revolving Loans in the affected Foreign Currency (other than any such Foreign Currency Revolving Loans which have theretofore been funded) shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing given by the Borrower with respect to such Foreign Currency Revolving Loans which have not yet been incurred shall be deemed rescinded by the Borrower.
(b) At any time that any Fixed Euro Rate Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (may, and in the case of a Fixed any Euro Rate Loan affected by the circumstances described in Section 1.10(a)(iii) ), the Borrower shall) , either (x) if the affected Fixed Euro Rate Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Euro Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative AgentAgent and the affected Lender, (A) in the case of a Eurodollar Loan, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan and (B) in the case of a Foreign Currency Revolving Loan, repay such Foreign Currency Revolving Loan in full; provided that-------- that (i) if the circumstances described in Section 1.10(a)(iii) apply to any Foreign Currency Revolving Loan, the Borrower may, in lieu of taking the actions described above in this Section 1.10(b), maintain such Foreign Currency Revolving Loan outstanding, in which case the applicable Euro Rate shall be determined on the basis provided in the last sentence of the definition of EURIBOR or Sterling LIBOR, as the case may be, unless the maintenance of such Foreign Currency Revolving Loan outstanding on such basis would not stop the conditions described in Section 1.10(a)(iii) from existing (in which case the actions described above, without giving effect to this proviso, shall be required to be taken), and (ii) if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Effective Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such BankLender's portion of the Total Commitment Commitments hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall shall, subject to Section 1.16, be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such BankLender's -------- determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for therefor and the calculation thereof.
(d) In the event that any Lender shall determine (which determination shall, absent manifest error, be final and conclusive and binding on all parties hereto) at any time that such Lender is required to maintain reserves (including, without limitation, any marginal, emergency, supplemental, special or other reserves required by applicable law) which have been established by any Federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body with jurisdiction over such Lender (including any branch, Affiliate or funding office thereof) in respect of any Foreign Currency Revolving Loans or any category of liabilities which includes deposits by reference to which the interest rate on any Foreign Currency Revolving Loan is determined or any category of extensions of credit or other assets which includes loans by a non-United States office of any Lender to non-United States residents, then, unless such reserves are included in the calculation of the interest rate applicable to such Foreign Currency Revolving Loans or in Section 1.10(a)(ii), such Lender shall promptly notify the Administrative Agent and the Borrower in writing specifying the additional amounts required to indemnify such Lender against the cost of maintaining such reserves (such written notice to provide in reasonable detail a computation of such additional amounts) and, provided, however, that failure subject to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.Section
Appears in 1 contract
Samples: Credit Agreement (Manitowoc Co Inc)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement Effective Date affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans such Eurodollar Loan or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such BankLender, or any franchise tax based on the net income or net profits of a Lender, in either case pursuant to the laws of the jurisdiction in which it such Lender is organized or in which its such Lender's principal office or applicable lending office is located or any subdivision thereof or therein) ), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances since the date of this Agreement Effective Date affecting such Bank, the London interbank Eurodollar market Lender or the domestic interbank Eurodollar market or the position of such Bank Lender in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindeda Notice of Borrowing or Notice of Conversion for or into Base Rate Loans unless such Notice of Borrowing or Notice of Conversion is rescinded by the Borrower prior to the making of such Borrowing or such conversion, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower shall, subject to the provisions of Section 13.17 (to the extent applicable), pay to such BankLender, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Lender, the obligations of such Lender to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein shall be reinstated. In addition, if the Administrative Agent gives notice to the Borrower that the events described in clause (i) above cease to exist, then the obligations of the Lenders to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein (but subject to clause (iii) above) shall also be reinstated.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) the Borrower shall) either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, provided that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any time any Lender determines that, after the date of this Agreement any Bank determines that Effective Date, the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of lawlaw and including, without limitation, those announced or published prior to the Effective Date) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such BankLender's portion of the Total Commitment Commitments hereunder or its obligations Obligations hereunder, then the Borrowers shall Borrower shall, subject to the provisions of Section 13.17 (to the extent applicable), pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such BankLender's reasonable good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show the basis for calculation of such additional amounts. In addition, providedeach such Lender, however, upon determining that failure the circumstances giving rise to give any such notice shall not release or diminish any obligation the payment of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such noticecease to exist, will give prompt written notice thereof to the Borrower.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any the Bank shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
hereto): (i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR NIBOR; or IBOR; or
(ii) at any time, that such the Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate NIBOR Loan because of (x) any change since the date of this Agreement in any applicable law or governmental rule, regulation, order, guideline order or request (whether or not having the force of law) (or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline order or request), such as, for example, but not limited to to, (A) a change in the basis of taxation of payment payments to any the Bank or its applicable lending office of the principal of or interest on the Loans Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of Bank or its applicable lending office imposed by the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or thereinlocated) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent covered by Section 1.11(d) or included in the computation of the LIBOR NIBOR; or IBOR and/or (y) other circumstances since the date of this Agreement affecting such Bank, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate NIBOR Loan has been made (x) unlawful by any law or governmental rule, regulation or order, or (y) impossible by compliance by any the Bank in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market); then, and in any such event, such the Bank (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurBorrower. Thereafter (x) in the case of clause (i) above, LIBOR Rate NIBOR Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent Bank notifies the Borrowers and the Banks Borrower that the circumstances giving rise to such notice by the Administrative Agent Bank no longer exist, and any Notice of Request for Borrowing or Notice of Conversion given by any of the Borrowers Borrower with respect to any affected Fixed Rate NIBOR Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded, rescinded by the Borrower; (y) in the case of clause (ii) above, the respective Borrowers Borrower shall pay to such the Bank, promptly upon its within five Business Days after written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such the Bank in its sole discretion shall determine) as shall be required to compensate such the Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such the Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank shallshall be conclusive, absent manifest error, be final and conclusive and binding on all the parties hereto) ); and (z) in the case of clause (iii) above, the respective Borrowers shall take one of the actions specified in Section 1.10(b1.11(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate NIBOR Loan is affected by the circumstances described in Section 1.10(a)(ii1.11(a)(ii) or (iii), the respective Borrower may (and and, in the case of a Fixed Rate NIBOR Loan affected by the circumstances described in Section 1.10(a)(iii) 1.11(a)(iii), shall) either (xi) if the affected Fixed Rate NIBOR Loan is then being made initially or pursuant to a conversion, cancel said Borrowing, or change the respective Borrowing Type of Loan to become a Base Rate Loan by giving the Administrative Agent telephonic Bank notice by telephone (confirmed in writing) of the cancellation on the same date (if practicable) that such the Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii1.11(a)(ii) or (iii) ); or (yii) if the affected Fixed Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agentnotice, require the affected Bank to convert such Fixed Rate NIBOR Loan into a Base Rate Loan, provided that, if more than one Bank is affected at any time, all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If the Bank determines at any time after that any change since the date of this Agreement any Bank determines that the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive order or request (whether or not having the force of law) concerning capital adequacy, or any change since the date of this Agreement in the interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank or any corporation controlling such the Bank based on the existence of such the Bank's portion of the Total Commitment or its obligations hereunder, then the Borrowers Borrower shall pay to such the Bank, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such the Bank or such other corporation for the increased cost to such the Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capital. The Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.11(c), will give prompt written notice thereof to the Borrower, which notice shall show the basis for calculation of such additional amounts. In determining such additional amounts, each the Bank will act reasonably and in good faith and will use averaging and attribution methods which that are reasonable, ; provided that such the Bank's determination of compensation owing under this Section 1.10(c1.11(c) shallshall be conclusive, absent manifest error, .
(d) In the event that the Bank shall determine (which determination shall be final and conclusive and binding on prima facie evidence with respect to all the parties hereto. Each ) at any time that by reason of Regulation D the Bank's lending office is required to maintain reserves in respect of Eurocurrency liabilities (as defined in Regulation D) during any period in which it has a NIBOR Loan outstanding (each such period, for the Bank, upon determining that a "Eurocurrency Reserve Period"), then the Bank shall promptly give notice (by telephone confirmed in writing) to the Borrower of such determination, and the Borrower shall pay to the Bank additional interest on the unpaid principal amount of each NIBOR Loan of the Bank during such Eurocurrency Reserve Period at a rate per annum which shall, during each Interest Period applicable to such NIBOR Loan, be the amount by which (i) the NIBOR Rate for such Interest Period divided (and rounded to the nearest whole
multiple of 1 16 of 1%) by a percentage equal to 100% minus the then stated maximum rate of all reserve requirements (including, without limitation, any additional amounts will be marginal, emergency, supplemental, special or other reserves) applicable to any member bank of the Federal Reserve System in respect of Eurocurrency liabilities (as defined in Regulation D) exceeds (ii) the NIBOR Rate for such Interest Period. Additional interest payable pursuant to this Section 1.10(c), will give prompt written the immediately preceding sentence shall be paid by the Borrower at the time that it is otherwise required to pay interest in respect of such NIBOR Loan. The Bank agrees that if it gives notice thereof to the affected Borrowers, which notice shall show the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation Borrower of the Borrowers existence of a Eurocurrency Reserve Period, it shall promptly notify the Borrower of any termination thereof, at which time the Borrower shall cease to be obligated to pay additional amounts interest to such Bank pursuant to the first sentence of this Section 1.10(c1.11(d) upon receipt of until such noticetime, if any, as a subsequent Eurocurrency Reserve Period shall occur.
Appears in 1 contract
Samples: Credit Agreement (Warburg Pincus Post Venture Capital Fund Inc)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs of agreeing to make or making, funding or maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate, or reductions in the amounts received or receivable hereunder in connection with respect to any Fixed Rate Loan of the foregoing because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to (A) a change in the basis of taxation of payment that shall subject any Lender to any Bank of the principal of Taxes (other than (1) Indemnified Taxes or interest on the Loans or Other Taxes indemnifiable under Section 5.04 and (2) any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or thereinExcluded Taxes) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances arising since the date of this Agreement Effective Date affecting such Bank, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its following such Lender’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the respective Borrower may (may, and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), the Borrower shall) , either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on within one Business Day of the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, provided that, that if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Effective Date the introduction or effectiveness of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Commitment Lender’s Commitments hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees to pay to such BankLender, promptly upon following its written demand therefor, therefor (together with the reasonable detail described in the last sentence of this clause (c)) such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonablereasonable and customary, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
(d) Notwithstanding anything in this Agreement to the contrary, provided(x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, howeverrules, that failure guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to give any such notice Basel III, shall in each case be deemed to be a Change in Law, regardless of the date enacted, adopted, issued or implemented for all purposes under or in connection with this Agreement (including this Section 2.10).
(e) Notwithstanding anything to the contrary in this Section 2.10, the Borrower shall not release or diminish any obligation of the Borrowers be required to pay additional amounts compensate a Lender pursuant to this Section 1.10(c) upon receipt 2.10 for any amounts incurred more than 180 days prior to the date that such Lender notifies the Borrower of such noticeLender’s intention to claim compensation therefor; provided that, if the circumstances giving rise to such claim have a retroactive effect, then such 180-day period shall be extended to include the period of such retroactive effect.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Arc Document Solutions, Inc.)
Increased Costs, Illegality, etc. (a) In the event that any Bank --------------------------------- shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto butand, with respect to clause all but the following clauses (iii)(x) belowand (iii), may shall be made only by after consultation with the Administrative AgentCompany and the Agents):
(i) on any date for determining the Quoted Rate or Fixed CD Rate for any Interest Determination Date thatPeriod, that by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar secondary certificate of deposit market, as the case may be, or affecting the position of such Bank in either of such markets, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR Quoted Rate or IBORFixed CD Rate, as the case may be; or
(ii) (x) on any date for determining the Quoted Rate or Fixed CD Rate for any Interest Period, that by reason of the requirements of Regulation D (excluding all reserves required under Regulation D to the extent included in the computation of the Fixed CD Rate), (y) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan because by reason of (x) any change since the date of this Agreement in any applicable law or governmental rule, regulation, order, guideline or request order (whether or not having the force of law) or in the any interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to (Aorder) a change in the basis of taxation of payment to any Bank of the principal of or interest on the Loans or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR and/or (yz) on any date for determining the Quoted Rate, that by reason of other circumstances since the date of this Agreement affecting such Bank, the London interbank Eurodollar market Bank or the domestic interbank Eurodollar market or the position of such Bank in either such marketmarket (such as for example but not limited to a change in the official reserve requirements to the extent not provided for in clause (ii)(x) above), the Quoted Rate or Fixed CD Rate, as the case may be, shall not represent the effective pricing to such Bank for funding or maintaining the affected Fixed Rate Loan; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) become unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any such Bank in good faith with any law, governmental request (whether rule, regulation, guideline or not having force of law) order, or (z) has become impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank (or the Administrative Agent, in the case of clause (i) above) shall promptly on such date give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, Company and to the Administrative Agent of such determination Agents (which notice the Administrative Agent shall promptly transmit to each of the in all cases other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur. Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers with respect to any affected Fixed Rate Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded, (y) in the case of clause (ii) above, the respective Borrowers shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers by such Bank shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (x) if the affected Fixed Rate Loan is then being made initially or determination pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert such Fixed Rate Loan into a Base Rate Loan, provided that, if more than one Bank is affected at any time, all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Bank determines that the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank or any corporation controlling such Bank based on the existence of such Bank's portion of the Total Commitment or its obligations hereunder, then the Borrowers shall pay to such Bank, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected Borrowers, which notice shall show the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.clause
Appears in 1 contract
Samples: Credit Agreement (Mead Corp)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement Effective Date affecting the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORthe Eurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change since arising after the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits or franchise taxes based on net income of such Bank, Lender pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D requirements (except to the extent included in the computation of the LIBOR Eurodollar Rate) or IBOR any special deposit, assessment or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (or its applicable lending office) and/or (y) other circumstances since the date of this Agreement Effective Date affecting such Bank, the London interbank Eurodollar market Lender or the domestic applicable interbank Eurodollar market or the position of such Bank Lender in either such market; or
(iii) at any timetime after the date of this Agreement, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or any Notice of Conversion given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower shall, subject to the provisions of Section 13.17 (to the extent applicable), pay to such BankLender, promptly upon its written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three two Business Days' written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, provided PROVIDED that, if more than one Bank Lender is affected at any timetime as described above in this clause (b), then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement Effective Date any Bank Lender determines that the introduction of or any change (which introduction or change shall have occurred after the date of this Agreement) in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such BankLender's portion of the Total Commitment hereunder or its obligations hereunder, then the Borrowers shall pay Borrower agrees to pay, subject to the provisions of Section 13.17 (to the extent applicable), to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided PROVIDED that such BankLender's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORLIBO Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate LIBOR Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a any change in that would subject the basis of taxation of payment Administrative Agent or any Lender to any Bank of the principal of or interest on the Loans or any other amounts payable hereunder taxes (except for changes in the rate Taxes and Excluded Taxes) on its loans, loan principal, letters of tax oncredit, commitments or other obligations, or determined by reference toits deposits, the net income reserves, other liabilities or profits of such Bankcapital attributable thereto, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR LIBO Rate or IBOR and/or (yC) other circumstances since the date of this Agreement affecting such Bank, any change that imposes on any Lender or the London interbank Eurodollar market any other condition, cost or the domestic interbank Eurodollar market expense (other than taxes) affecting this Agreement or the position Loans made by such Lender or any Letter of such Bank in either such marketCredit or participation therein; or
(iii) at any time, that the making or continuance of any Fixed Rate LIBOR Loan has been made (xA) unlawful by any law or governmental rule, regulation or order, (yB) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (zC) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; . then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (xw) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Company and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate LIBOR Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by such Borrower, (yx) in the case of clause (ii) above, the respective U.S. Borrowers shall (jointly and severally with respect to U.S. Borrower Obligations) and the Dutch Borrowers (jointly and severally with respect to Dutch Borrower Obligations) agree to pay to such BankLender, promptly upon its within 10 days after the Company’s receipt of such Lender’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole reasonable discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers respective Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto); provided that the Borrowers shall not be required to compensate any Lender pursuant to Section 2.10(ii) for any increased costs or reductions incurred more than 180 days prior to the date that such Lender notifies the Company of the change giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided, further, that, if the change giving rise to such increased costs or reductions is retroactive, then the 180 day period referred to above shall be extended to include the period of retroactive effect thereof and (zy) in the case of clause (iii) above, the respective Borrower or Borrowers shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate LIBOR Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the respective affected Borrower may (may, and in the case of a Fixed Rate LIBOR Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), such Borrower shall) , either (xi) if the affected Fixed Rate LIBOR Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii), (ii) or (y) if in respect of a LIBOR Loan denominated in U.S. Dollars where the affected Fixed Rate LIBOR Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate LIBOR Loan into a Base Rate Loan, ; provided that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b) or (iii) in respect of a LIBOR Loan denominated in Euros or an Acceptable Foreign Currency, repay such Loan upon the expiration of the then-applicable Interest Period (or such earlier period as required by applicable law).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Effective Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacyadequacy or liquidity, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital or liquidity required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Lender’s Revolving Loan Commitment hereunder or its obligations hereunder, then the U.S. Borrowers shall (jointly and severally with respect to U.S. Borrower Obligations) and the Dutch Borrowers (jointly and severally with respect to Dutch Borrower Obligations) agree to pay to such BankLender, promptly upon its within 10 days after the Company’s receipt of such Lender’s written demand request therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capitalcapital or required liquidity. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, ; provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the affected BorrowersCompany, which notice shall show in reasonable detail the basis for calculation of such additional amounts, provided, however, that although the failure to give any such notice shall not release or diminish any obligation of the Borrowers Borrowers’ obligations to pay additional amounts pursuant to this Section 1.10(c2.10(c) upon the subsequent receipt of such notice; provided that the Borrowers shall not be required to compensate any Lender pursuant to this Section 2.10(c) for any increased costs or reductions incurred more than 180 days prior to the date that such Lender notifies the Company of the change giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided further, that, if the change giving rise to such increased costs or reductions is retroactive, then the 180 day period referred to above shall be extended to include the period of retroactive effect thereof.
(d) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, in each case shall be deemed to be a change after the Effective Date in a requirement of law or governmental rule, regulation or order, regardless of the date enacted, adopted, issued or implemented (including for purposes of this Section 2.10 and Section 3.06).
(e) Notwithstanding anything herein to the contrary, if the introduction of or any change in any applicable law or governmental rule, regulation or order shall make it unlawful for any Lender to issue, make, maintain, fund or charge interest with respect to any extension of credit to a Dutch Borrower or to give effect to its obligations as contemplated by this Agreement with respect to any extension of credit to a Dutch Borrower, then, upon written notice by such Lender (each such Lender providing such notice, an “Impacted Lender”) to the Company and the Administrative Agent:
(i) the obligations of the Lenders hereunder to make extensions of credit to such Dutch Borrower shall forthwith be (x) suspended until each Impacted Lender notifies the Company and the Administrative Agent in writing that it is no longer unlawful for such Lender to issue, make, maintain, fund or charge interest with respect to any extension of credit to such Dutch Borrower or (y) to the extent required by law, cancelled;
(ii) if it shall be unlawful for any Impacted Lender to maintain or charge interest with respect to any outstanding Loan to such Dutch Borrower, such Dutch Borrower shall repay (or at its option and to the extent permitted by law, assign to the Company) (x) all outstanding Base Rate Loans made to such Dutch Borrower within three Business Days or such earlier period as required by law and (y) all outstanding LIBOR Loans made to such Dutch Borrower on the last day of the then current Interest Periods with respect to such LIBOR Loans or within such earlier period as required by law; and
(iii) if it shall be unlawful for any Impacted Lender to maintain, charge interest or hold any participation with respect to any Letter of Credit issued on behalf of such Dutch Borrower, such Dutch Borrower shall cash collateralize in a manner reasonably satisfactory to the Administrative Agent and the applicable Issuing Lender such Letter of Credit in an amount equal to 102% of such Lender’s RL Percentage of the Letter of Credit Outstandings (for this purpose, using the U.S. Dollar Equivalent of amounts denominated in Euros or any Acceptable Foreign Currency) with respect to such Letter of Credit within three Business Days or within such earlier period as required by law.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of clause (i) below, the Administrative Agent or (y) in the case of clauses (ii) and (iii) below, any Bank Lender, shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agenthereto):
(i) on any Interest Determination Date Date, that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan Eurodollar Loans because of (x) any change since the date of this Agreement in any applicable law or law, governmental rule, regulation, orderguideline, guideline order or request (whether or not having the force of law) ), or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, orderguideline, guideline order or request, request (such as, for example, but not limited to to, (A) without duplication of any amounts payable under Section 4.04(a), a change in the basis of taxation of or payment to any Bank Lender of the principal of or interest on the such Eurodollar Loans or any other amounts payable hereunder (except for changes in the rate of with respect to any tax imposed on, or determined by reference to, the net income or net profits of such Bank, Lender pursuant to the laws of the jurisdiction in which it such Lender is organized or in which its such Lender's principal office or applicable lending office is located or any subdivision thereof or therein) ), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances since affecting the date of this Agreement affecting such Bank, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such market; or
(iii) at any timetime since the date of this Agreement, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) become unlawful by compliance by such Lender with any law or law, governmental rule, regulation regulation, guideline or order, order (y) impossible by compliance by any Bank in good faith or would conflict with any governmental rule, regulation, guideline, request (whether or order not having the force of law) law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawful), or (z) has become impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank ;
(or a) upon the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent subsequent receipt of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur. Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers with respect to any affected Fixed Rate Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded, (y) in the case of clause (ii) above, the respective Borrowers shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers by such Bank shall, absent manifest error, be final and conclusive and binding on all the parties heretonotice) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in pursuant to Section 1.10(a)(iii) the Borrower shall) either (xi) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversionBorrowing, cancel the respective said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that such the Borrower was notified by the affected Bank or the Administrative Agent a Lender pursuant to Section 1.10(a)(ii) or (iii) )), or (yii) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank Lender to convert each such Fixed Rate Eurodollar Loan into a Base Rate Loan, provided that, ; PROVIDED that if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any time Lender shall have determined that the adoption or effectiveness after the date hereof of this Agreement any Bank determines that the introduction of or any change in any applicable law law, rule or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning regulation regarding capital adequacy, or any change therein after the date hereof, or any change after the date hereof in the interpretation or administration thereof by any governmental authority, central bank or comparable agencyagency charged with the interpretation or administration thereof, will have the effect of increasing the amount of capital required or expected to be maintained compliance by such Bank Lender or any corporation controlling such Bank based Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency adopted or effective after the date hereof, has or would have the effect of reducing the rate of return on the existence such Lender's or such other corporation's capital or assets as a consequence of such BankLender's portion of the Total Commitment or Commitments hereunder or its obligations hereunderhereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy), then from time to time, upon written demand by such Lender (with a copy to the Borrowers shall Administrative Agent), accompanied by the notice referred to in the last sentence of this clause (c), the Borrower shall, subject to Section 1.14, pay to such Bank, promptly upon its written demand therefor, Lender such additional amount or amounts as shall be required to will compensate such Bank Lender or such other corporation for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the increased cost Borrower (a copy of which shall be sent by such Lender to such Bank or such other corporation or the reduction in Administrative Agent), which notice shall set forth the rate basis of return to such Bank or such other corporation as a result the calculation of such increase of capital. In determining such additional amounts, each Bank will act reasonably and in although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's reasonable good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected Borrowers, which notice shall show the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 1 contract
Samples: Credit Agreement (Symons Corp)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause clauses (i) and (iv) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement Restatement Effective Date affecting the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORthe relevant Euro Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Euro Rate Loan because of (x) any change since the date of this Agreement Restatement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or taxes that are determined by reference to, to the net income or net profits or franchise taxes imposed in lieu thereof of such BankLender or, in the case of a Lender that is a flow-through entity for tax purposes, a member or a partner of such Lender, pursuant to the laws of the country or national jurisdiction (or any political subdivision thereof) in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or thereinlocated) or and (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR relevant Euro Rate (provided that increased costs or IBOR and/or (y) other circumstances since reductions in the date of this Agreement affecting such Bank, the London interbank Eurodollar market amounts received or the domestic interbank Eurodollar market or the position of such Bank in either such marketreceivable with respect to Taxes shall be dealt with exclusively pursuant to Section 4.04); or
(iii) at any time, that the making or continuance of any Fixed Euro Rate Loan has been made (x) unlawful by any change since the Restatement Effective Date in any applicable law or governmental rule, regulation or order, order or (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring made after the date of this Agreement which materially and adversely affects Restatement Effective Date; or
(iv) if applicable, at any time that Euros are not available in sufficient amounts, as determined in good faith by the London interbank Eurodollar market or the domestic interbank Eurodollar marketAdministrative Agent, acting reasonably, to fund any Euro Denominated Loans requested pursuant to Section 2.01; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause clauses (i) or (iv) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause clauses (i) and (iv) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (xw) in the case of clause (i) above, LIBOR Rate (A) in the event Eurodollar Loans and/or IBOR Rate Loansare so affected, as the case may be, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrowers U.S. Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers U.S. Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by such U.S. Borrower, and (B) in the event that any Euro Denominated Loan is so affected, Euro LIBOR shall be determined on the basis provided in the proviso to the definition of Euro LIBOR, (yx) in the case of clause (ii) above, the respective Borrowers shall affected Borrower agrees to pay to such BankLender, promptly upon its such Lender’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole reasonable discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amount or amounts owed to such BankLender, showing in reasonable detail the basis for and the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and ), (zy) in the case of clause (iii) above, the respective Borrowers affected Borrower shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by lawlaw and (z) in the case of clause (iv) above, Euro Denominated Loans (exclusive of any such Euro Denominated Loans that have theretofore been funded), shall no longer be available until such time as the Administrative Agent notifies the German Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or notice pursuant to Section 2.03 given by the respective German Borrower with respect to such Euro Denominated Loans which have not been incurred shall be deemed rescinded by the German Borrower. Each of the Administrative Agent and each Lender agrees that if it gives notice to any Borrower of any of the events described in clause (i), (ii), (iii) or (iv) above, it shall promptly notify such Borrower and, in the case of any such Lender, the Administrative Agent, promptly after it actually becomes aware that such event has ceased to exist.
(b) At any time that any Fixed Euro Rate Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the respective affected Borrower may (may, and in the case of a Fixed Euro Rate Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), the affected Borrower shall) , either (x) if the affected Fixed Euro Rate Loan is then being made initially or pursuant to a conversion, cancel such Borrowing (or the respective Borrowing conversion thereof) by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that on which such Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) ), or (y) if the affected Fixed Euro Rate Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, (A) in the case of a Eurodollar Loan, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan and (B) in the case of any Euro Denominated Loan, repay such affected Euro Denominated Loan in full in accordance with the applicable requirements of Section 4.01; provided that, if more than one Bank is affected at the circumstances described in Section 2.10(a)(iii) apply to any timeEuro Denominated Loan, all affected Banks must the Borrowers may, in lieu of taking the actions described above, maintain such Euro Denominated Loan outstanding, in which case, Euro LIBOR shall be treated determined on the same pursuant basis provided in the proviso to the definition of Euro LIBOR unless the maintenance of such Euro Denominated Loan outstanding on such basis would not stop the conditions described in Section 2.10(a)(iii) from existing (in which case the actions described above, without giving effect to this Section 1.10(bproviso, shall be required to be taken).
(c) If at any time Lender reasonably determines that after the date of this Agreement any Bank determines that Restatement Effective Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agencyagency charged with the administration thereof, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Commitment Lender’s Commitments hereunder or its obligations hereunder, then the Borrowers shall each affected Borrower agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will Lender shall act reasonably and in good faith and will shall use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the each affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts, provided, however, that failure .
(d) Failure or delay on the part of any Lender to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts demand compensation pursuant to this Section 1.10(c) upon receipt shall not constitute a waiver of such noticeLender’s right to demand such compensation; provided that (x) the affected Borrower or Borrowers shall not be required to compensate a Lender pursuant to this Section 2.10 for any increased costs or reduction incurred more than 180 days prior to the date on which such Lender notifies such Borrower or Borrowers of the change in law described in Section 2.10(a)(ii) or 2.10(c) giving rise to such increased costs or reduction and of such Lender’s intention to claim compensation therefor and (y) if such change in law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause clauses (i) and (iv) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement Effective Date affecting the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORthe respective Euro Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Euro Rate Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to (A) a change in the basis of taxation of payment payments to any Bank a Lender of the principal of or interest on the Loans or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such Bank, pursuant to the laws of Lender imposed by the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) located), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances arising since the date of this Agreement affecting such BankLender, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such marketmarket (whether or not such Lender was a Lender at the time of such occurrence); or
(iii) at any timetime after the Effective Date, that the making or continuance of any Fixed Euro Rate Loan has been made (x) unlawful by any law or governmental rule, regulation or order, order (y) impossible by compliance by any Bank in good faith or would conflict with any governmental rule, regulation, guideline, request (whether or order not having the force of law) law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawful), or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London applicable interbank Eurodollar market or market; or
(iv) at any time that Euros are not available in sufficient amounts, as determined in good faith by the domestic interbank Eurodollar marketAdministrative Agent, to fund any Borrowing of Euro Denominated Loans requested pursuant to Section 1.01; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause clauses (i) or (iv) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers Borrower, and, except in the case of clause clauses (i) and (iv) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (xw) in the case of clause (i) above, LIBOR Rate (A) in the event Eurodollar Loans and/or IBOR Rate Loansare so affected, as the case may be, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrowers Holdings, any affected Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers either Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by such Borrower and (B) in the event that any Euro Denominated Loan is so affected, the relevant Euro Rate shall be determined on the basis provided in the proviso to the definition of the relevant Euro Rate, (yx) in the case of clause (ii) above, the respective Borrower or Borrowers shall agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a with the written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereofLender, submitted to the affected respective Borrower or Borrowers by such Bank shallLender in accordance with the foregoing to be, absent manifest error, be final and conclusive and binding on all the parties hereto, although the failure to give any such notice shall not release or diminish any of the respective Borrower's or Borrowers' obligations to pay additional amounts pursuant to this Section 1.10(a) and upon the subsequent receipt of such notice), (zy) in the case of clause (iii) above, the respective Borrower or Borrowers shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by lawlaw and (z) in the case of clause (iv) above, Euro Denominated Loans (exclusive of any such Euro Denominated Loans which have theretofore been funded) shall no longer be available until such time as the Administrative Agent notifies the respective Borrower or Borrowers and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or notice pursuant to Section 1.03(b)(i) given by the respective Borrower or Borrowers with respect to such Euro Denominated Loans which have not been incurred shall be deemed rescinded by such Borrower or Borrowers. Each of the Administrative Agent and each Lender agrees that if it gives notice to either Borrower of any of the events described in clause (i), (ii), (iii) or (iv) above, it shall promptly notify such Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Fixed Euro Rate Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective affected Borrower may (and in the case of a Fixed Euro Rate Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (x) if the affected Fixed Euro Rate Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Euro Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, (A) in the case of a Eurodollar Loan, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law) and (B) in the case of any Euro Rate Loan (other than a Eurodollar Loan), repay all outstanding Borrowings which include such affected Euro Rate Loans in full in accordance with the applicable requirements of Section 4.01; provided that, (i) if the circumstances described in Section 1.10(a)(iii) apply to any Euro Denominated Loan, the U.S. Borrower or the Bermuda Borrower, as the case may be, may, in lieu of taking the actions described above, maintain such Euro Denominated Loan outstanding, in which case, (x) in the case of Euro Denominated Revolving Loans, the applicable Euro Rate shall be determined on the basis provided in the proviso to the definition of Euro LIBOR and (y) in the case of Euro Denominated Swingline Loans, the applicable interest rate shall be determined on the basis provided in the proviso to the definition of Overnight Euro Rate, as the case may be, unless the maintenance of such Euro Denominated Loan outstanding on such basis would not stop the conditions described in Section 1.10(a)(iii) from existing (in which case the actions described above, without giving effect to the proviso, shall be required to be taken) and (ii) if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any time Lender shall have determined after the date of this Agreement any Bank determines Effective Date that the introduction adoption or effectiveness after the Effective Date of or any change in any applicable law law, rule or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning regulation regarding capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agencyagency charged with the interpretation or administration thereof, will have the effect of increasing the amount of capital required or expected to be maintained compliance by such Bank Lender or any corporation controlling such Bank based Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the existence such Lender's or such other corporation's capital or assets as a consequence of such BankLender's portion of the Total Commitment or Commitments hereunder or its obligations hereunderhereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy), then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrowers shall jointly and severally agree to pay to such Bank, promptly upon its written demand therefor, Lender such additional amount or amounts as shall be required to will compensate such Bank Lender or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capitalcorporation. In Each Lender, upon determining such additional amounts, each Bank will act reasonably and in good faith that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the relevant Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and will use averaging and attribution methods which are reasonablethe calculation, provided that in reasonable detail, of such Bankadditional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish either Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankFor the avoidance of doubt, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected Borrowers, which notice shall show the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to nothing in this Section 1.10(c) upon receipt shall require either Borrower or Holdings to pay to any Lender any amount for which such Lender is compensated by way of payment of Mandatory Costs.
(d) In the event that any Lender shall in good faith determine (which determination shall, absent manifest error, be final and conclusive and binding on all parties hereto) at any time that such notice.Lender is required to maintain reserves (including, without limitation, any marginal, emergency, supplemental, special or other reserves required by applicable law) which have been established by any Federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body with jurisdiction over such Lender (including any branch, Affiliate or funding office thereof) in respect of any Euro Denominated Loans or any
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date date for the determination of the Adjusted Eurodollar Rate that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORAdjusted Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan or any Competitive Bid Loan because of any change (excluding (x) any change in gross or net income taxes imposed by any jurisdiction or political subdivision or taxing authority having authority over such Bank and (y) any change in respect of Taxes) since the date of this Agreement (or, in the case of any such cost or reduction with respect to any Competitive Bid Loan, since the date of the making of such Competitive Bid Loan) in any applicable law or governmental rule, regulation, orderguideline, guideline order or request (whether or not having the force of law) (or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, order) such as, for example, but not limited to (A) a change in the basis of taxation of payment to any Bank of the principal of or interest on the Loans or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding all reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR and/or (y) other circumstances since the date of this Agreement affecting such Bank, the London interbank Adjusted Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such marketRate; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) become unlawful by compliance by such Bank with any law or law, governmental rule, regulation regulation, guideline or orderorder issued, (y) impossible by compliance by any Bank in good faith with any governmental request (whether promulgated, amended or not having force otherwise becoming effective after the date of law) this Agreement, or (z) has become impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank (or the Administrative Agent, in the case of clause (i) above) shall promptly on such date give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and (A) any Notice of Borrowing, Notice of Competitive Bid Borrowing or Notice of Conversion given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower or (B) if such determination is made in respect of establishing the Adjusted Eurodollar Rate for a new Interest Period to be applicable to Loans then outstanding as Eurodollar Loans, such Loans shall be converted into Base Rate Loans on the first day of the proposed new Interest Period, (y) in the case of clause (ii) above, the respective Borrowers Borrower shall pay to such Bank, promptly upon its written demand thereforwithin ten days of receipt of the notice referred to below, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such the Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing setting forth the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank shall, absent manifest error, be final and conclusive and binding on upon all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b1.11(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Loan is affected by the circumstances described in Section 1.10(a)(ii1.11(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Loan affected by the circumstances described in pursuant to Section 1.10(a)(iii1.11(a)(iii) shall) either (x) if the affected Fixed Rate Loan is then being made initially or pursuant to a Borrowing or a conversion, either cancel said Borrowing or conversion or convert the respective Notice of Borrowing, Notice of Competitive Bid Borrowing or Notice of Conversion therefor into a Notice of Borrowing or Notice of Conversion, as the case may be, for Base Rate Loans, in either case by giving the Administrative Agent telephonic notice (confirmed in writing) thereof on the same date that such the Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii1.11(a)(ii) or (iii) or (y) if the affected Fixed Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert such Fixed Rate Loan into a Base Rate Loan, ; provided that, if more than one Bank is similarly affected at any time, then all similarly affected Banks must be treated the same pursuant to this Section 1.10(b1.11(b).
(c) If any Bank determines at any time after the date of this Agreement any Bank determines that the introduction of or any change in or effectiveness of any applicable law or governmental rule, regulation, order, guideline, directive guideline or request (whether or not having the force of law) order concerning capital adequacyadequacy (including, without limitation, those announced or published prior to the date of this Agreement), or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank or any corporation controlling such Bank based on the existence of such Bank's portion of the Total Commitment hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees, subject to Section 14.16 (to the extent applicable), to pay to such Bank, promptly upon its written demand thereforwithin ten days of the receipt of the notice referred to below, such additional amounts as shall be required to compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, ; provided that such Bank's determination of compensation owing under this Section 1.10(c1.11(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c1.11(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show the basis for calculation of such additional amounts, provided, however, that although the failure to give any such notice shall not release or diminish any the Borrower's obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice1.11(c).
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender or any Certificate Holder shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, that by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORRate; or
(ii) at any time, that such Bank Lender or Certificate Holder shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan or Equity Contribution because of (x) any change since the date of this Agreement in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender or any Certificate Holder of the principal of or interest on the Loans Notes, any payment due on the Certificates or any other amounts payable to any Lender or any Certificate Holder hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, Lender or such Certificate Holder pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Rate and/or (y) other circumstances since the date of this Agreement affecting such Bank, the London interbank Eurodollar market Lender or such Certificate Holder or the domestic interbank Eurodollar market or the position of such Bank Lender or such Certificate Holder in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Loan or Equity Contribution has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender or any Certificate Holder in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender or such Certificate Holder (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers Lessor and Lessee and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on Lenders and/or each of the date such Borrowing was to occurother Certificate Holders, as the case may be). Thereafter (x) in the case of clause (i) above, LIBOR Rate new Loans and/or IBOR Rate Loans, as the case may be, and Equity Contributions shall no longer be available until such time as the Administrative Agent notifies Lessor, Lessee, the Borrowers Lenders and the Banks Certificate Holders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Funding Notice of Borrowing or Notice of Conversion given by any of the Borrowers Lessee with respect to any affected Fixed Rate Loans and Equity Contributions which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by Lessee, (y) in the case of clause (ii) above, the respective Borrowers Lessee shall pay to such BankLender or such Certificate Holder, promptly upon its within fifteen (15) days of such Lender's or such Certificate Holder's written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion Lender or such Certificate Holder reasonably shall determine) as shall be required to compensate such Bank Lender or Certificate Holder for such increased costs or reductions in amounts received or receivable hereunder (a as set forth in such written notice request as to the additional amounts owed to such BankLender or such Certificate Holder, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Lessee by such Bank Lender or such Certificate Holder shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Lessee shall take one of the actions specified in Section 1.10(b10.4(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Loan or Equity Contribution is affected by the circumstances described in Section 1.10(a)(ii10.4(a)(ii) or (iii), the respective Borrower Lessee may (and in the case of a Fixed Rate Loan or Equity Contribution affected by the circumstances described in Section 1.10(a)(iii10.4(a)(iii) shall) either (x) if the affected Fixed Rate Loan or Equity Contribution is then being made initially or pursuant to a conversioninitially, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower Lessee was notified by the affected Bank Lender, the affected Certificate Holder or the Administrative Agent pursuant to Section 1.10(a)(ii7.4(a)(ii) or (iii) or (y) if the affected Fixed Rate Loan is then outstandingoutstanding or the Equity Contribution is not then repaid, upon at least three Business LIBOR Banking Days' written notice to the Administrative Agent, require the affected Bank Lender or the affected Certificate Holder to convert such Fixed Loan into an Alternate Rate Loan into a Base or the Equity Rate Loanof the Equity Contribution to an Alternate Rate-based rate, provided that, if more than one Bank Lender or Certificate Holder is affected at any time, then all affected Banks Lenders and affected Certificate Holders must be treated the same pursuant to this Section 1.10(b10.4(b).
(c) If at any time after the date of this Agreement any Bank Lender or any Certificate Holder determines that the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or such Certificate Holder or any corporation controlling such Bank Lender or such Certificate Holder based on the existence of such Bank's portion of the Total Lender Commitment or such Certificate Holder Committee, respectively, hereunder or its obligations hereunder, then the Borrowers Lessee shall pay to such BankLender or such Certificate Holder, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such Certificate Holder or such other corporation for the increased cost to such Bank Lender or such Certificate Holder or such other corporation or the reduction in the rate of return to such Bank Lender or such Certificate Holder or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender and each Certificate Holder will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such BankLender's or such Certificate Holder's determination of compensation owing under this Section 1.10(c10.4(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender and each Certificate Holder, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c10.4(c), will give prompt written notice thereof to the affected BorrowersLessee, which notice shall show in reasonable detail the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 1 contract
Samples: Participation Agreement (Universal Compression Holdings Inc)
Increased Costs, Illegality, etc. (a) In the event that any --------------------------------- Bank shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement Restatement Effective Date affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change since the date of this Agreement Restatement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any such Bank of the principal of or interest on the Loans such Eurodollar Loan or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, Bank pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances since the date of this Agreement Restatement Effective Date affecting such Bank, the London interbank Eurodollar market Bank or the domestic interbank Eurodollar market or the position of such Bank in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any such Bank in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Restatement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers Borrower shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan; provided, provided that, that if more than one Bank is affected at any time, then -------- all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement Restatement Effective Date any Bank determines that the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank or any corporation controlling such Bank based on the existence of such Bank's portion of the Total Commitment commitments or its obligations hereunder, then the Borrowers Borrower shall pay to such Bank, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable; provided, provided that such Bank's reasonable good faith -------- determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pay able pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 1 contract
Samples: Credit Agreement (Autotote Corp)
Increased Costs, Illegality, etc. (a) In the event that any Bank shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change since the date of this Agreement in any applicable law or governmental (including any NAIC) rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank of the principal of or interest on the Loans such Eurodollar Loan or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, Bank pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances since the date of this Agreement affecting such Bank, the London interbank Eurodollar market Bank or the domestic interbank Eurodollar market or the position of such Bank in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental (including any NAIC) rule, regulation or order, (y) impossible by compliance by any Bank in good faith with any governmental (including any NAIC) request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) thereof to the affected Borrower or respective Borrowers that have incurred such Eurodollar Loans and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur). Thereafter (x) in the case of clause (i) above, LIBOR Rate on the last day of the then current Interest Period or Interest Periods, all Eurodollar Loans and/or IBOR shall be automatically converted to Base Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers respective Borrower and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers with respect to any affected Fixed Rate Loans in which have not yet been incurred (including by way of conversionevent Section 1.08(d) shall be deemed rescindedapply, (y) in the case of clause (ii) above, the respective Borrowers shall such Borrower agrees to pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers such Borrower by such Bank in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b1.08(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agents and each Bank agrees that if it gives notice to any Borrower of any of the events described in clause (i) or (iii) above, it shall promptly notify such Borrower and, in the case of any such Bank, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Bank, the obligations of such Bank to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein shall be reinstated.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii1.08(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii1.08(a)(iii) shall) either (x) if the affected Fixed Rate Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Loan is then outstanding), upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert such Fixed Rate Eurodollar Loan into a Base Rate LoanLoan until such time as the circumstances described in Section 1.08(a)(ii) or (iii) shall no longer be applicable in which event clause (d) below shall apply, provided pro- vided, that, if more than one Bank is affected at any time, then all affected Banks must be treated the same pursuant to this Section 1.10(b1.08(b).
(c) If at any time after the date of this Agreement any Bank determines that the introduction of or any change in any applicable law or governmental (including any NAIC) rule, regulation, order, guideline, directive or request (whether or not having the force of lawlaw and including, without limitation, those announced or published prior to the Closing Date) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authorityauthority (including the NAIC), central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank or any corporation controlling such Bank based on the existence of such Bank's portion of the Total Commitment Commitments hereunder or its obligations hereunder, then the Borrowers shall jointly and severally agree to pay to such Bank, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided provided, that such Bank's reasonable good faith determination of compensation owing under this Section 1.10(c1.08(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c1.08(c), will give prompt written notice thereof to the affected Borrowers, which notice shall show the basis for calculation of such additional amounts.
(d) In the event that any Base Rate Loan is outstanding at any time and the relevant circumstances described in Section 1.08(a)(i), provided(ii) and/or (iii), howeveras the case may be, that failure cease to be applicable, the respective Bank or Banks or the Administrative Agent (as applicable) shall give any prompt notice thereof to the respective Borrower and the Administrative Agent (as applicable) and (x) if a Borrowing of Eurodollar Loans is outstanding at such notice shall time (from one or more Banks which were not release affected by such circumstances or diminish any obligation as a result of the Borrowers application of following clause (y)), then on the last day of the Interest Period then applicable thereto the Base Rate Loans of the respective affected Bank or Banks to pay additional amounts pursuant which the circumstances described above have ceased to this be applicable shall be converted back into (and thereafter shall form a part of) the respective Borrowing of Eurodollar Loans (until such time, if any, as Section 1.10(c1.08(a) upon receipt and (b) shall thereafter become applicable) and (y) if no Eurodollar Loans remain outstanding at such time, then on the third Business Day thereafter the Base Rate Loans of such noticethe respective Bank or Banks to which the circumstances described above shall cease to be applicable shall be converted into a Borrowing of Eurodollar Loans (with an Interest Period of three months beginning on said third Business Day).
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Term Loans or the Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such Bank, Lender pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or thereintherein and Taxes covered by Section 5.04) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances arising since the date of this Agreement Effective Date affecting such BankLender, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees, subject to the provisions of Section 13.18 (to the extent applicable), to pay to such BankLender, promptly upon its such Lender’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by applicable law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the respective Borrower may (may, and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), the Borrower shall) , either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three one Business Days' Day’s written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, provided that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Effective Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, will have the effect of increasing reducing the amount rate of capital required or expected to be maintained by return on such Bank Lender’s or any corporation controlling such Bank based on the existence Lender’s capital or assets as a consequence of such Bank's portion of the Total Lender’s Commitment or its obligations hereunderhereunder to the Borrower to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender’s or such corporation’s policies with respect to capital adequacy), then from time to time, upon written demand by such Lender (with a copy to the Borrowers shall Administrative Agent), the Borrower agrees, subject to the provisions of Section 13.18 (to the extent applicable), to pay to such Bank, promptly upon its written demand therefor, Lender such additional amount or amounts as shall be required to will compensate such Bank Lender or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capitalcorporation. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 1 contract
Samples: Credit Agreement (United Online Inc)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of clause (i) below, the Administrative Agent or (y) in the case of clauses (ii) and (iii) below, any Bank Lender, shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agenthereto):
(i) on any Interest Determination Date Date, that, by reason of any changes arising after the date of this Agreement Effective Date affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan Eurodollar Loans because of (x) any change since the date of this Agreement Effective Date in any applicable law or law, governmental rule, regulation, orderguideline, guideline order or request (whether or not having the force of law) ), or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, orderguideline, guideline order or request, such as, for example, but not limited to to, (A) a change in the basis of taxation of payment payments to any Bank a Lender of the principal of or interest on the Loans or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such Bank, pursuant to the laws of Lender imposed by the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) located), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances since the date of this Agreement affecting such BankLender, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such marketmarket (other than circumstances relating to taxes or any similar charges); or
(iii) at any timetime since the Effective Date, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) become unlawful by compliance by such Lender with any law or law, governmental rule, regulation regulation, guideline or order, order (y) impossible by compliance by any Bank in good faith or would conflict with any governmental rule, regulation, guideline, request (whether or order not having the force of law) law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawful), or (z) has become impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank ;
(or a) upon the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent subsequent receipt of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur. Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers with respect to any affected Fixed Rate Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded, (y) in the case of clause (ii) above, the respective Borrowers shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers by such Bank shall, absent manifest error, be final and conclusive and binding on all the parties heretonotice) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible practicable and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in pursuant to Section 1.10(a)(iii) ), the Borrower shall) either (xi) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversionBorrowing, cancel the respective said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that such the Borrower was notified by the affected Bank or the Administrative Agent a Lender pursuant to Section 1.10(a)(ii) or (iii) )), or (yii) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank Lender to convert each such Fixed Rate Eurodollar Loan into a Base Rate LoanLoan (which conversion, provided thatin the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); PROVIDED that if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any time Lender shall have determined that after the date Effective Date, the adoption or effectiveness of this Agreement any Bank determines that the introduction of or any change in any applicable law law, rule or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authorityGovernmental Authority charged with the interpretation or administration thereof, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained compliance by such Bank Lender or any corporation controlling such Bank based on the existence of such Bank's portion of the Total Commitment Lender with any request or its obligations hereunder, then the Borrowers shall pay to such Bank, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected Borrowers, which notice shall show the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.directive
Appears in 1 contract
Samples: Credit Agreement (Intelsat LTD)
Increased Costs, Illegality, etc. (a) In the event that If any Bank shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause Change in Law (i) belowimposes, may modifies, or deems applicable any reserve (including any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of the Adjusted Term SOFR), special deposit, or similar requirement against assets of, deposits with, or for the account of, or credit extended by, any Lender; (ii) subject any Recipient to any Taxes (other than (A) indemnified Taxes and (B) 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) imposes on any Lender any other condition affecting its SOFR Loans, its Note(s), or its obligation to make SOFR Loans, and the result of anything described in clauses (i), (ii) and (iii) above is to increase the cost to (or to impose a cost on) that Lender (or any SOFR office of that Lender) of making or maintaining any Loan, or to reduce the amount of any sum received or receivable by that Lender (or its SOFR office) under this Agreement or under its Note(s) with respect thereto, then upon demand by that Lender (which demand must be made only accompanied by a statement setting forth the basis for that demand and a calculation of the amount thereof in reasonable detail, a copy of which must be furnished to the Administrative Agent):), the Borrower shall pay directly to that Lender such additional amount as will compensate that Lender for that increased cost or that reduction, so long as the applicable amounts have accrued on or after the day that is 180 days prior to the date on which that Xxxxxx first made demand therefor.
(ib) on If any Interest Determination Date thatLender reasonably determines that any change in, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar marketadoption or phase-in of, adequate and fair means do not exist for ascertaining the any applicable interest rate on the basis provided for law, rule, or regulation regarding capital adequacy, or any change in the definition of LIBOR interpretation or IBOR; or
(ii) at administration thereof by any timeGovernmental Authority, that such Bank shall incur increased costs central bank, or reductions in comparable agency charged with the amounts received interpretation or receivable hereunder administration thereof, or the compliance by any Lender or any Person controlling any Lender with respect to any Fixed Rate Loan because of (x) any change since the date of this Agreement in any applicable law request or governmental rule, regulation, order, guideline or request directive regarding capital adequacy (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law such authority, central bank, or governmental rulecomparable agency, regulation, order, guideline has or request, such as, for example, but not limited to (A) a change in would have the basis effect of taxation of payment to any Bank of the principal of or interest on the Loans or any other amounts payable hereunder (except for changes in reducing the rate of tax onreturn on that Xxxxxx’s or that controlling Person’s capital as a consequence of that Lender’s obligations under this Agreement to a level below that which that Lender or that controlling Person could have achieved but for that change, adoption, phase-in, or determined compliance (taking into consideration that Lender’s or that controlling Person’s policies with respect to capital adequacy) by reference toan amount deemed by that Lender or that controlling Person to be material, then from time to time, upon demand by that Lender (which demand must be accompanied by a statement setting forth the basis for that demand and a calculation of the amount thereof in reasonable detail, a copy of which must be furnished to the Administrative Agent), the net income Borrower shall pay to that Lender such additional amount as will compensate that Lender or profits of such Bankthat controlling Person for that reduction, pursuant so long as the applicable amounts have accrued on or after the day that is 180 days prior to the laws date on which that Xxxxxx first made demand therefor.
(c) The Administrative Agent shall promptly notify the other parties of the jurisdiction in following:
(i) The Administrative Agent reasonably determines (which it is organized or in which its principal office or determination will be binding and conclusive on the Borrower) that by reason of circumstances affecting the interbank SOFR market adequate and reasonable means do not exist for ascertaining the applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR and/or (y) other circumstances since the date of this Agreement affecting such Bank, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such marketAdjusted Term SOFR; or
(iiiii) at the Required Lenders advise the Administrative Agent that the Adjusted Term SOFR as determined by the Administrative Agent will not adequately and fairly reflect the cost to those Lenders of maintaining or funding SOFR Loans (taking into account any time, amount to which those Lenders may be entitled under this Section 2.10) or that the making or continuance funding of any Fixed Rate Loan SOFR Loans has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank in good faith with any governmental request (whether or not having force of law) or (z) become impracticable as a result of a contingency an event occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank (or the Administrative Agent, in the case opinion of clause those Lenders materially affects those Loans.
(d) So long as any circumstances described in a notice delivered pursuant to Section 2.10(c) continue, (i) above) shall promptly give notice (by telephone confirmed in writing) no Lender will be required to the affected Borrower make or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur. Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate convert any SOFR Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers with respect to any affected Fixed Rate Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded, (y) in the case of clause (ii) aboveeach such Loan will, the respective Borrowers shall pay unless then repaid in full, automatically convert to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers by such Bank shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by lawABR Loan.
(be) At any time that any Fixed Rate Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii)If, the respective Borrower may (and in the case of a Fixed Rate Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (x) if the affected Fixed Rate Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert such Fixed Rate Loan into a Base Rate Loan, provided that, if more than one Bank is affected at any time, all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Bank determines that the introduction of or Agreement, any change in in, or the adoption of any applicable new, law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in the interpretation of any applicable law or administration thereof regulation by any governmental authorityGovernmental Authority or other regulatory body charged with the administration thereof, central bank makes it (or comparable agencyin the good faith judgment of any Lender causes a substantial question as to whether it is) unlawful for any Lender to make, maintain, or fund SOFR Loans, then that Lender shall promptly notify each of the other parties to this Agreement and, so long as those circumstances continue, (i) that Lender will have not be required to make or convert any ABR Loan into a SOFR Loan (but that Lender shall, subject to the effect other terms of increasing this Agreement, make ABR Loans concurrently with the making of or conversion of ABR Loans into SOFR Loans by the Lenders which are not so affected, in each case in an amount equal to the amount of capital required SOFR Loans which would be made or expected converted into by that Lender at that time in the absence of those circumstances), and (ii) each such SOFR Loan will, unless then repaid in full, automatically convert to be maintained an ABR Loan. Each ABR Loan made by such Bank or any corporation controlling such Bank based on the existence of such Bank's portion of the Total Commitment or its obligations hereundera Lender which, then the Borrowers shall pay to such Bank, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank or such other corporation but for the increased cost to such Bank or such other corporation or the reduction circumstances described in the rate foregoing sentence, would be a SOFR Loan (an “Affected Loan”) will remain outstanding for the Interest Period corresponding to the SOFR Loans of return which that Affected Loan would be a part absent those circumstances.
(f) Determinations and statements of any Lender pursuant to such Bank or such other corporation as a result of such increase of capitalthis Section 2.10 will be conclusive absent demonstrable error. In determining such additional amounts, each Bank will act reasonably and in good faith and will Lenders may use reasonable averaging and attribution methods which are reasonable, provided that such Bank's determination in determining compensation under Section 2.01(a) or Section 2.10(b) and the provisions of compensation owing under this Section 1.10(c) shall2.10 will survive repayment of the Obligations, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that cancellation of any additional amounts will be payable pursuant to this Section 1.10(cNote(s), will give prompt written notice thereof to the affected Borrowers, which notice shall show the basis for calculation and termination of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such noticeAgreement.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement First Restatement Effective Date affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan or Competitive Bid Loan, as the case may be, because of (x) any change since the date of this Agreement First Restatement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank of the principal of or interest on the any Loans or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, Bank pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances since the date of this Agreement First Restatement Effective Date affecting such Bank, the London interbank Eurodollar market Bank or the domestic interbank Eurodollar market or the position of such Bank in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan or Competitive Bid Loan, as the case may be, has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement First Restatement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank (or the Administrative Agent, in the case of clause (i) above) shall promptly give telephonic notice (by telephone confirmed in writing) to the affected respective Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers respective Borrower and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers such Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by such Borrower, (y) in the case of clause (ii) above, the respective Borrowers Borrower shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers such Borrower by such Bank shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b1.11(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan or Competitive Bid Loan is affected by the circumstances described in Section 1.10(a)(ii1.11(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate any Eurodollar Loan or Competitive Bid Loan affected by the circumstances described in Section 1.10(a)(iii1.11(a)(iii) shall) either (x) if the affected Fixed Rate Eurodollar Loan or Competitive Bid Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii1.11(a)(ii) or (iii) or ), (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert such Fixed Rate Eurodollar Loan into a Base Rate LoanLoan or (z) if the affected Competitive Bid Loan is then outstanding, repay such Competitive Bid Loan in full; provided that, if more than one Bank is affected at any time, then all affected Banks must be treated the same pursuant to this Section 1.10(b1.11(b).
(c) If at any time after the date of this Agreement any Bank determines that the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of lawlaw and including, without limitation, those announced or published prior to the First Restatement Effective Date) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank or any corporation controlling such Bank based on the existence of such Bank's portion of the Total Revolving Loan Commitment hereunder or its obligations hereunder, then the Borrowers shall pay (and shall be jointly and severally obligated to pay) to such Bank, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's determination of compensation owing under this Section 1.10(c1.11(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c1.11(c), will give prompt written notice thereof to the affected Borrowers, which notice shall show the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that (x) in --------------------------------- the case of clause (i) below, the Agent or (y) in the case of clauses (ii) and (iii) below, any Bank Bank, shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agenthereto):
(i) on any Interest Determination Date Date, that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan Eurodollar Loans because of (x) any change since the date of this Agreement in any applicable law or law, governmental rule, regulation, orderguideline, guideline order or request (whether or not having the force of law) ), or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, orderguideline, guideline order or request, request (such as, for example, but not limited to to, (A) a change in the basis of taxation of or payment to any Bank of the principal of or interest on the such Eurodollar Loans or any other amounts payable hereunder (except for changes in the rate of with respect to any tax imposed on, or determined by reference to, the net income or net profits of such Bank, Bank pursuant to the laws of the jurisdiction in which it such Bank is organized organized, or in which its such Bank's principal office or applicable lending office is located or any subdivision thereof or therein) therein or Taxes for which the Borrower is responsible under Section 4.04), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate) and/or (y) other circumstances since the date of this Agreement affecting such Bank, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such market; or
(iii) at any timetime since the date of this Agreement, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) become unlawful by compliance by such Bank with any law or law, governmental rule, regulation regulation, guideline or order, order (y) impossible by compliance by any Bank in good faith or would conflict with any governmental rule, regulation, guideline, request (whether or order not having the force of law) law but with which such Bank customarily complies even though the failure to comply therewith would not be unlawful), or (z) has become impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank ;
(or a) upon the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent subsequent receipt of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur. Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers with respect to any affected Fixed Rate Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded, (y) in the case of clause (ii) above, the respective Borrowers shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers by such Bank shall, absent manifest error, be final and conclusive and binding on all the parties heretonotice) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and and, in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in pursuant to Section 1.10(a)(iii) ), the Borrower shall) either (xi) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversionBorrowing, cancel the respective said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that such the Borrower was notified by the affected a Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) )), or (yii) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert each such Fixed Rate Eurodollar Loan into a Base Rate Loan; provided, provided that, that if more than one Bank -------- is affected at any time, then all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time Bank shall have determined that after the date hereof, the adoption or effectiveness of this Agreement any Bank determines that the introduction of or any change in any applicable law law, rule or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agencyagency charged with the interpretation or administration thereof, will have the effect of increasing the amount of capital required or expected to be maintained compliance by such Bank or any corporation controlling such Bank based with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the existence such Bank's or such other corporation's capital or assets as a consequence of such Bank's portion of the Total Commitment or Commitments hereunder or its obligations hereunderhereunder to a level below that which such Bank or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Bank's or such other corporation's policies with respect to capital adequacy), then from time to time, upon written demand by such Bank (with a copy to the Borrowers Agent), accompanied by the notice referred to in the last sentence of this clause (c), the Borrower shall pay to such Bank, promptly upon its written demand therefor, Bank such additional amount or amounts as shall be required to will compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capitalreduction. In determining such additional amounts, each Bank will act reasonably and in good faith and will use reasonable averaging and attribution methods which are reasonable, provided that such Bank's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties heretomethods. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected BorrowersBorrower (a copy of which shall be sent by such Bank to the Agent), which notice shall show set forth the basis for of the calculation of such additional amounts, provided, however, that although the failure to give any such notice shall not release or diminish any obligation of the Borrowers Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Bank's reasonable good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto.
(d) Promptly after any Bank has determined, in its judgment, that it will make a request for increased compensation pursuant to this Section 1.10, such Bank will notify the Borrower thereof. Failure on the part of any Bank so to notify the Borrower or to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any period shall not constitute a waiver of such Bank's right to demand compensation with respect to such period or any other period; provided -------- that the Borrower shall not be under any obligation to compensate any Bank under Section 1.10(a)(ii) or (c) with respect to increased costs or reductions with respect to any period prior to the date that is 90 days prior to such request if such Bank knew or could reasonably have been expected to be aware of the circumstances giving rise to such increased costs or reductions and of the fact that such circumstances would in fact result in such increased costs or reduction; provided further, that the foregoing limitation shall not apply to ---------------- any increased costs or reduction arising out of the retroactive application of any law, regulation, rule, guideline or directive as aforesaid within such 90- day period.
Appears in 1 contract
Samples: Credit Agreement (Collins & Aikman Floor Coverings Inc)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic Canadian interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR Rate or IBOR; orCanadian B/A Rate;
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed LIBOR Rate Loan or B/A Equivalent Loan because of (x) any change since the date of this Agreement Closing Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the official interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, official guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank of the principal of additional Tax imposed on any Lender (except Indemnified Taxes or interest on the Loans Other Taxes indemnified under Section 5.01 or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or thereinExcluded Taxes) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR Rate or IBOR and/or (y) other circumstances since the date of this Agreement affecting such BankCanadian B/A Rate, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such marketas applicable; or
(iii) at any time, that the making or continuance of any Fixed LIBOR Rate Loan or B/A Equivalent Loans has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Closing Date which materially and adversely affects the London interbank Eurodollar market or the domestic Canadian interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) writing to the affected Lead Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, or B/A Equivalent Loans shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Lead Borrower or the Canadian Borrower, as applicable, with respect to any affected Fixed LIBOR Rate Loans or B/A Equivalent Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the applicable Borrowers, (y) in the case of clause (ii) above, each U.S. Borrower, jointly and severally, agrees to pay, and the respective Borrowers shall pay Canadian Borrower agrees to pay, as applicable, to such BankLender, promptly upon its such Lender’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to setting forth the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, shall be submitted to the affected Borrowers Lead Borrower by such Bank Lender and shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and ), (z) in the case of clause (iii) above, the respective Borrowers shall take one of the actions specified in Section 1.10(b3.01(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed LIBOR Rate Loan or B/A Equivalent Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii3.01(a)(ii), the respective Lead Borrower may (or the Canadian Borrower, as applicable, may, and in the case of a Fixed LIBOR Rate Loan or a B/A Equivalent Loan affected by the circumstances described in Section 1.10(a)(iii) 3.01(a)(iii), the Lead Borrower or the Canadian Borrower, as applicable, shall) , on its own behalf or on behalf of the relevant Borrower either (x) if the affected Fixed LIBOR Rate Loan or B/A Equivalent Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic written notice (confirmed in writing) on the same date that such the Lead Borrower or Canadian Borrower, as applicable, was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii3.01(a)(ii) or (iii) or (y) if the affected Fixed LIBOR Rate Loan or B/A Equivalent Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed LIBOR Rate Loan into a U.S. Base Rate Loan or Canadian Base Rate Loan, as applicable, or such B/A Equivalent Loan into a Canadian Prime Loan, provided that, that if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b3.01(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Closing Date the introduction of or any change in any applicable law Applicable Law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacyadequacy or liquidity, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital or liquidity required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Commitment Lender’s Commitments hereunder or its obligations hereunder, then each applicable Borrower, (jointly and severally as regards to the Borrowers shall U.S. Borrowers), agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capitalcapital or liquidity. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c3.01(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c3.01(c), will give prompt written notice thereof to the affected BorrowersLead Borrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
(d) Notwithstanding anything in this Agreement to the contrary, provided(x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, howeverrules, that failure guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to give any such notice Basel III ((x) and (y) collectively referred to as “Xxxx-Xxxxx and Basel III”), shall not release be deemed to be a change after the Closing Date in a Requirement of Law or diminish any obligation government rule, regulation or order, regardless of the Borrowers to pay additional amounts pursuant to date enacted, adopted, issued or implemented (including for purposes of this Section 1.10(c) upon receipt of such notice3.01).
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any --------------------------------- Bank shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change since the date of this Agreement in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank of the principal of or interest on the Loans such Eurodollar Loan or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such Bank, or any franchise tax based on the net income or net profits of a Bank, in either case pursuant to the laws of the jurisdiction in which it such Bank is organized or in which its such Bank's principal office or applicable lending office is located or any subdivision thereof or therein) ), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances since the date of this Agreement affecting such Bank, the London interbank Eurodollar market Bank or the domestic interbank Eurodollar market or the position of such Bank in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Borrowing, Notice of Conversion or notice given under Section 1.09 delivered by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers Borrower shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Bank agrees that if it gives notice to the Borrower of any of the events described in clause (i) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Bank, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Bank, the obligations of such Bank to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein shall be reinstated. In addition, if the Administrative Agent gives notice to the Borrower that the events described in clause (i) above cease to exist, then the obligations of the Banks to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein (but subject to clause (iii) above) also shall be reinstated.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) the Borrower shall) either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, provided -------- that, if more than one Bank is affected at any time, then all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time any Bank determines that, after the date of this Agreement any Bank determines that Agreement, the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of lawlaw and including, without limitation, those announced or published prior to the Effective Date) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank or any corporation controlling such Bank based on the existence of such Bank's portion of the Total Commitment Commitments hereunder or its obligations hereunder, then the Borrowers Borrower shall pay to such Bank, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's reasonable good faith determination of -------- compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show the basis for calculation of such additional amounts. In addition, providedeach such Bank, however, upon determining that failure the circumstances giving rise to give any such notice shall not release or diminish any obligation the payment of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such noticecease to exist, will give prompt written notice thereof to the Borrower.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, but with respect to clause (i) below, may be made only by the Administrative Agent):): C/M 11752.0000 414856.1
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change since the date of this Agreement in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank of the principal of or interest on the Loans Notes or any other amounts payable hereunder (except for changes in the rate of with respect to any tax imposed on, or determined measured by reference to, the net income or net profits of such Bank, or any franchise tax based on the net income or net profits of a Bank, in either case pursuant to the laws of the jurisdiction juris- diction in which it such Bank is organized or in which its such Bank's principal office or applicable lending office is located or any subdivision thereof or therein) ), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances since the date of this Agreement adversely affecting such Bank, the London interbank Eurodollar market Bank or the domestic interbank Eurodollar market or the position of such Bank in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; or
(iv) at any time that Canadian Dollars are not available due to market conditions in sufficient amounts, as determined in good faith by such Bank, to fund any Borrowing of Revolving C$ Loans; then, and in any such event, such Bank (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected applicable Borrower or Borrowers and, except in the case of clause (i) above, to the C/M 11752.0000 414856.1 Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur). Thereafter (xw) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers applicable Borrower and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers applicable Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred borrowed (including by way of conversion) shall be deemed rescindedrescinded by the applicable Borrower, (yx) in the case of clause (ii) above, above the respective Borrowers applicable Borrower shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers applicable Borrower by such Bank in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and ), (zy) in the case of clause (iii) above, the respective Borrowers applicable Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by lawlaw and (z) in the case of clause (iv) above, Revolving C$ Loans shall no longer be available until such time as the Administrative Agent notifies the Canadian Borrower and the Banks that the circumstances giving rise to such notice by the applicable Bank no longer exists, and any Notice of Borrower given by the Canadian Borrower with respect to Revolving C$ Loans which have not yet been borrowed shall be deemed rescinded by the Canadian Borrower. Each of the Administrative Agent and each Bank agrees that if it gives notice to a Borrower of any of the events described in clause (i), (iii) or (iv) above, it shall promptly notify the applicable Borrower and, in the case of any such Bank, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Bank, the obligations of such Bank to make Eurodollar Loans and to convert $ Base Rate Loans into $ Eurodollar Loans on the terms and conditions contained herein shall be reinstated.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective applicable Borrower may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank or the Administrative Agent C/M 11752.0000 414856.1 pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' Days (four Business Days in the case of Revolving C$ Loans) written notice to the Administrative Agent, require the affected Bank to convert such Fixed Rate Eurodollar Loan into a $ Base Rate Loan, in the case of $ Eurodollar Loans, or a Loan denominated in Canadian Dollars having an interest rate comparable to the Base Rate as determined in the sole discretion of the affected Bank, in the case of C$ Eurodollar Loans, as the case may be, provided that, if more than one Bank is affected at any time, then all affected Banks must be treated the same pursuant to this Section 1.10(b). If at any time the making or continuance of any Revolving C$ Loan, or any giving effect to the obligations of a Bank in respect thereof, has been made unlawful by any law coming into force or by any change since the date of this Agreement in any applicable law or regulation or in the interpretation or application thereof by any court or any statutory board or commission, then the Canadian Borrower, upon at least three Business Days' written notice to the Administrative Agent and the affected Bank, and subject to Section 4.02(b), shall repay such Revolving C$ Loan in full.
(c) If at any time after the date of this Agreement any Bank determines that the introduction of after the Effective Date of, or any change in after the Effective Date in, any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change after the Effective Date in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank or any corporation controlling such Bank Bank, based on the existence of such Bank's portion of the Total Commitment Commitments hereunder or its obligations hereunder, then the Borrowers Company shall pay to such Bank, promptly upon within 15 days after its written demand therefor, such additional amounts as shall be required to compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's reasonable good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected BorrowersCompany, which notice shall show the basis for calculation of such additional amounts, provided, however, that although the failure to give any such notice shall not release or diminish any obligation of the Borrowers Borrower's Obligations to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.C/M 11752.0000 414856.1
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause clauses (i) and (iv) below, may be made only by the Administrative Agent or the Canadian Administrative Agent, as applicable):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement Restatement Effective Date affecting the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORthe relevant Euro Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Euro Rate Loan because of (x) any change since the date of this Agreement Restatement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or taxes that are determined by reference to, to the net income or net profits or franchise taxes imposed in lieu thereof of such BankLender or, in the case of a Lender that is a flow-through entity for tax purposes, a member or a partner of such Lender, pursuant to the laws of the country or national jurisdiction (or any political subdivision thereof) in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or thereinlocated) or and (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR relevant Euro Rate (provided that increased costs or IBOR and/or (y) other circumstances since reductions in the date of this Agreement affecting such Bankamounts received or receivable with respect to Taxes and Swiss Withholding Taxes shall be dealt with exclusively pursuant to Sections 5.04 and 5.05, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such marketrespectively); or
(iii) at any time, that the making or continuance of any Fixed Euro Rate Loan has been made (x) unlawful by any change since the Restatement Effective Date in any applicable law or governmental rule, regulation or order, or (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring made after the date Restatement Effective Date; or
(iv) at any time there is no market for Bankers’ Acceptances by reason of this Agreement which materially and adversely affects circumstances affecting the London interbank Eurodollar Canadian money market generally or the domestic interbank Eurodollar marketrelevant Available Currency (other than U.S. Dollars) is not available in sufficient amounts, as determined in good faith by the Administrative Agent, acting reasonably, to fund any Borrowing of Bankers’ Acceptance Loans, Non-Dollar Denominated Loans, as the case may be, requested pursuant to Section 2.01; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause clauses (i) or (iv) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause clauses (i) and (iv) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (xw) in the case of clause (i) above, LIBOR Rate (A) in the event Eurodollar Loans and/or IBOR Rate Loansare so affected, as the case may be, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrowers affected Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by such Borrower, and (B) in the event that any Non-Dollar Denominated Loan is so affected, the relevant Euro Rate shall be determined on the basis provided in the proviso to the definition for the relevant Euro Rate, (yx) in the case of clause (ii) above, the respective Borrowers shall agree to pay to such BankLender, promptly upon its such Lender’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole reasonable discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for and the calculation thereof, submitted to the affected Borrowers by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and ), (zy) in the case of clause (iii) above, the respective affected Borrower or Borrowers shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by lawlaw and (z) in the case of clause (iv) above, Bankers’ Acceptance Loans or Loans in the relevant Available Currency, as applicable (exclusive of any such Loans, that have theretofore been funded), shall no longer be available until such time as the Administrative Agent notifies the affected Borrower or Borrowers and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or notice pursuant to Section 2.03 given by the respective Borrower or Borrowers with respect to such Loans which have not been incurred shall be deemed rescinded by such Borrower or Borrowers. Each of the Administrative Agent and each Lender agrees that if it gives notice to any Borrower of any of the events described in clause (i), (ii), (iii) or (iv) above, it shall promptly notify such Borrower and, in the case of any such Lender, the Administrative Agent, promptly after it becomes aware that such event has ceased to exist.
(b) At any time that any Fixed Euro Rate Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the respective affected Borrower may (and and, in the case of a Fixed Euro Rate Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), the affected Borrower shall) , either (x) if the affected Fixed Euro Rate Loan is then being made initially or pursuant to a conversion, cancel such Borrowing (or the respective Borrowing conversion thereof) by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that on which such Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (y) if the affected Fixed Euro Rate Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, (A) in the case of a Eurodollar Loan, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan or (B) in the case of any Non-Dollar Denominated Euro Rate Loan, repay such affected Non-Dollar Denominated Euro Rate Loan in full in accordance with the applicable requirements of Section 5.01; provided that, (i) if the circumstances described in Section 2.10(a)(iii) apply to any Non-Dollar Denominated Euro Rate Loan, the Borrowers may, in lieu of taking the actions described above, maintain such Non-Dollar Denominated Euro Rate Loan outstanding, in which case, the relevant Euro Rate shall be determined on the basis provided in the proviso to the definition of the relevant Euro Rate unless the maintenance of such Non-Dollar Denominated Euro Rate Loan outstanding on such basis would not stop the conditions described in Section 2.10(a)(iii) from existing (in which case the actions described above, without giving effect to this proviso, shall be required to be taken) and (ii) if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender reasonably determines that after the date of this Agreement any Bank determines that Restatement Effective Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agencyagency charged with the administration thereof, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Commitment Lender’s Commitments hereunder or its obligations hereunder, then the Borrowers shall each affected Borrower agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will Lender shall act reasonably and in good faith and will shall use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will shall give prompt written notice thereof to the each affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts, provided, however, that failure .
(d) Failure or delay on the part of any Lender to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts demand compensation pursuant to this Section 1.10(c) upon receipt shall not constitute a waiver of such notice.Lender’s right to demand such compensation; provided that (x) the affected Borrower or Borrowers shall not be required to compensate a Lender pursuant to this Section 2.10 for any increased costs or reductions incurred more than 180 days prior to the date on which such Lender notifies the Borrowers of the change in law or other circumstance described in Section 2.10(a)(ii) or 2.10(c) giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor and
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agenthereto):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOR[reserved]; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate SOFR Loan because of (x) any change since the Closing Date (or the date of this Agreement such Lender became a Lender hereunder, if later) in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank of the principal of or interest on the Loans or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B1) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR Term SOFR, or IBOR and/or (y2) any change subjecting any Recipient to any Taxes (except for Excluded Taxes and any Indemnified Taxes) on its loans, loan principal, letters of credit, commitments, or other circumstances since the date of this Agreement affecting such Bankobligations, the London interbank Eurodollar market or the domestic interbank Eurodollar market its deposits, reserves, other liabilities or the position of such Bank in either such marketcapital attributable thereto; or
(iii) at any time, that the making or continuance of any Fixed Rate SOFR Loan has been made (xA) unlawful by any law or governmental rule, regulation or order, (yB) impossible by compliance by any Bank Lender in good faith with any governmental request from a Governmental Authority (whether or not having force of law) or (zC) impracticable as a result of a contingency contingency, other than with respect to a tax matter not otherwise provided for in this Section 2.10, occurring after the Closing Date or since the date of this Agreement such Person becomes a Lender, if later, which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar marketgenerally; then, and in any such event, such Bank (or the Administrative Agent, in the case of clause (i) above) Lender shall promptly give notice (by telephone confirmed in writing) writing to the affected Borrower or Borrowers and, except in the case of clause (i) above, and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers with respect to any affected Fixed Rate Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its such Xxxxxx’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, and stating that such Lender is charging such costs to its borrowers generally pursuant to its internal policies, submitted to the affected Borrowers Borrower by such Bank Lender (with a copy to the Administrative Agent) shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as reasonably possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate SOFR Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the respective Borrower may (may, and in the case of a Fixed Rate SOFR Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), the Borrower shall) , either (xi) if the affected Fixed Rate SOFR Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic written notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (yii) if the affected Fixed Rate SOFR Loan is then outstanding, upon at least three (3) Business Days' ’ written notice by the Borrower to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate SOFR Loan into a Base Rate Loan; provided, provided that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender determines that after the Closing Date (or the date of this Agreement any Bank determines that such Lender became a Lender hereunder, if later) the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Xxxxxx’s Commitment hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable; provided, provided that such Bank's Xxxxxx’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the affected BorrowersBorrower (with a copy to the Administrative Agent), which notice shall show in reasonable detail the basis for calculation of such additional amounts, ; provided, howeverfurther, that, notwithstanding anything in this Agreement to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III shall, in each case, be deemed to be a change after the Closing Date in a requirement of law or government rule, regulation or order, regardless of the date enacted, adopted, issued or implemented (including for purposes of this Section 2.10).
(d) It is understood that failure to give any such notice this Section 2.10 shall not release apply to Excluded Taxes or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such noticeIndemnified Taxes.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORLIBOR; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans such Loan or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income income, gross receipts or net profits of such BankLender, or any franchise tax based on net income, net profits or net worth of such Lender, in each case pursuant to the laws of the jurisdiction in which it such Lender is organized or in which its such Lender’s principal office or applicable lending office is located or any subdivision thereof or therein) ), but without duplication of any amounts payable in respect of Taxes pursuant to Section 3.05, or (B) a change in official reserve requirements, requirements but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR and/or (y) other circumstances arising since the date of this Agreement Effective Date affecting such Bank, Lender or the London interbank Eurodollar market or the domestic interbank Eurodollar market for Dollars or the position of such Bank Lender in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or and/or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar marketfor Dollars; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate any Notice of Borrowing given by the Borrower with respect to any affected Loans and/or IBOR Rate Loanswhich have not yet been incurred shall be deemed rescinded by the Borrower and the Total Commitment shall thereafter not be available to be borrowed hereunder, and the rate of interest applicable to any affected Loans then outstanding shall be the Base Rate, as in effect from time to time, from the case may be, shall no longer be available date such notice is delivered to the Borrower and thereafter until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers with respect to any affected Fixed Rate Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees, subject to the provisions of Section 1.11 and Section 13.15 (to the extent applicable), to pay to such BankLender, promptly upon its written demand therefor, therefore such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole reasonable good faith discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for and the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, and subject to Section 1.11, such Lender shall so notify the respective Borrowers Administrative Agent and the Borrower (and the Administrative Agent shall take one promptly give notice thereof to the other Lenders) and thereafter (A) except in the case of an event of the actions specified type described in Section 1.10(bclause (iii)(z) as promptly as possible above, the Commitment of such Lender shall be permanently reduced by an amount sufficient to alleviate such circumstance arising pursuant to clause (iii)(x) or (y) above, or shall be terminated in its entirety if all of such Lender’s Loans are so affected, and the Borrower shall prepay in full the affected Loans of such Lender, together with accrued interest thereon and, in the event of a termination of such Lender’s Commitment, any eventCommitment Commission which may be due to such Lender under this Agreement (and, within in the event all of such Lender’s Loans are being repaid, any other amounts which may be owing to such Lender hereunder (including, without limitation, any accrued and unpaid interest)), on either the last day of the then current Interest Period applicable to each such affected Loan (if such Lender may lawfully continue to maintain and fund such Loans) or immediately (if such Lender may not lawfully continue to maintain and fund such Loans to such day) and (B) in the case of an event of the type described in clause (iii)(z) above, the Commitment of such Lender shall be terminated in its entirety and the Borrower shall pay to such Lender any accrued and unpaid Commitment Commission which may be due to such Lender under this Agreement, and all outstanding Loans of such Lender shall, from the date such notice is delivered to the Borrower and thereafter until such time period required by lawas the Administrative Agent or such Lender shall notify the Borrower that the circumstances giving rise to the operation of clause (iii)(z) above with respect to such Lender no longer exist. The Administrative Agent and each Lender (to the extent it continues to be a Lender hereunder) agree that if any of them gives notice to the Borrower of any of the events described in clause (i) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Lender (to the extent it continues at such time to be a Lender hereunder), the obligations of such Lender to make Loans on the terms and conditions contained herein shall to the extent of such Lender’s outstanding Loans and Commitments as in effect at such time, be immediately reinstated.
(b) At If any time Lender in good faith determines that any Fixed Rate Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (x) if the affected Fixed Rate Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert such Fixed Rate Loan into a Base Rate Loan, provided that, if more than one Bank is affected at any time, all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Bank determines that Effective Date the introduction of or effectiveness of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, agency will have the effect of increasing the amount of capital required or expected requested to be maintained by such Bank Lender, or any corporation controlling such Bank Lender, based on the existence of such Bank's portion of the Total Commitment Lender’s Commitments hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees, subject to the provisions of Section 13.15 (to the extent applicable), to pay to such BankLender, promptly upon its written demand therefortherefore, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c1.09(b) shall, absent manifest error, but subject to the provisions of Section 13.15 (to the extent applicable), be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c1.09(b), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for and calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans such Loan or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income income, gross receipts or net profits of such BankLender, or any franchise tax based on net income, net profits or net worth, of such Lender pursuant to the laws of the jurisdiction in which it such Lender is organized or in which its such Lender’s principal office or applicable lending office is located or any subdivision thereof or therein) ), but without duplication of any amounts payable in respect of Taxes pursuant to Section 4.04, or (B) a change in official reserve requirements, requirements but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances arising since the date of this Agreement Effective Date affecting such Bank, the London interbank Eurodollar market Lender or the domestic interbank Eurodollar market or the position of such Bank Lender in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or and/or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate any Notice of Borrowing given by the Borrower with respect to any affected Loans and/or IBOR Rate Loanswhich have not yet been incurred shall be deemed rescinded by the Borrower and the Total Unutilized Commitment shall thereafter not be available to be borrowed hereunder, and the rate of interest applicable to any affected Loans then outstanding shall be the Base Rate, as in effect from time to time, plus the case may beApplicable Margin as in effect from time to time minus 1.00%, shall no longer be available from the date such notice is delivered to the Borrower and thereafter until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers with respect to any affected Fixed Rate Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees, subject to the provisions of Section 1.11 and Section 13.15 (to the extent applicable), to pay to such BankLender, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole reasonable good faith discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for and the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, and subject to Section 1.11, such Lender shall so notify the respective Borrowers Administrative Agent and the Borrower (and the Administrative Agent shall take one promptly give notice thereof to the other Lenders) and thereafter (A) except in the case of an event of the actions specified type described in Section 1.10(bclause (iii)(z) as promptly as possible above, the Commitment of such Lender shall be permanently reduced by an amount sufficient to alleviate such circumstance arising pursuant to clause (iii)(x) or (y) above, or shall be terminated in its entirety if all of such Lender’s Loans are so affected, and the Borrower shall prepay in full the affected Loans of such Lender, together with accrued interest thereon and, in the event of a termination of such Lender’s Commitment, any eventCommitment Commission which may be due to such Lender under this Agreement (and, within in the event all of such Lender’s Loans are being repaid, any other amounts which may be owing to such Lender hereunder (including, without limitation, any accrued and unpaid interest)), on either the last day of the then current Interest Period applicable to each such affected Loan (if such Lender may lawfully continue to maintain and fund such Loans) or immediately (if such Lender may not lawfully continue to maintain and fund such Loans to such day) and (B) in the case of an event of the type described in clause (iii)(z) above, the Commitment of such Lender shall be terminated in its entirety and the Borrower shall pay to such Lender any accrued and unpaid Commitment Commission which may be due to such Lender under this Agreement, and all outstanding Loans of such Lender shall, from the date such notice is delivered to the Borrower and thereafter until such time period required as the Administrative Agent or such Lender shall notify the Borrower that the circumstances giving rise to the operation of clause (iii)(z) above with respect to such Lender no longer exist, bear interest at a rate equal to the Base Rate, as in effect from time to time, it being understood that, notwithstanding anything to the contrary in this Agreement, to the extent any repayment of Loans of any Lender affected by lawcircumstances described in clause (iii)(z) above are repaid prior to receipt by the Borrower of the notice described above with respect to the elimination of such circumstances giving rise to the operation of clause (iii)(z) above with respect to such Lender, any amount of the Unutilized Commitment of such Lender which may otherwise result from such repayment shall be deemed permanently reduced upon the effectiveness of such repayment. The Administrative Agent and each Lender (to the extent it continues to be a Lender hereunder) agree that if any of them gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Lender (to the extent it continues at such time to be a Lender hereunder), the obligations of such Lender to make Loans on the terms and conditions contained herein shall to the extent of such Lender’s outstanding Loans and Commitments as in effect at such time, be immediately reinstated.
(b) At If any time Lender in good faith determines that any Fixed Rate Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (x) if the affected Fixed Rate Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert such Fixed Rate Loan into a Base Rate Loan, provided that, if more than one Bank is affected at any time, all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Bank determines that Effective Date the introduction of or effectiveness of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, agency will have the effect of increasing the amount of capital required or expected requested to be maintained by such Bank Lender, or any corporation controlling such Bank Lender, based on the existence of such Bank's portion of the Total Commitment Lender’s Commitments hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees, subject to the provisions of Section 13.15 (to the extent applicable), to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c1.09(b) shall, absent manifest error, but subject to the provisions of Section 13.15 (to the extent applicable), be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c1.09(b), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for and calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause clauses (i) and (iii)(z) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London relevant interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR Eurodollar Rate (in the case of Eurodollar Loans), EURIBOR (in the case of EURIBOR Rate Loans), Canadian Dollar Euro Rate (in the case of Canadian Dollar Loans) or IBOR; orPounds Sterling Euro Rate (in the case of Pounds Sterling Loans);
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Euro Rate Loan which such Bank deems to be material because of (x) any change since the date of this Agreement in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, and including the introduction of any new law or governmental rule, regulation, order, guideline or requestrequest (a "Change in Law"), such as, for example, but not limited to which (A) a change in changes the basis of taxation of payment to any Bank of the principal of or interest on the Loans such Euro Rate Loan or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it such Bank is organized or in which its such Bank's principal office or applicable lending office is located or any subdivision thereof or therein) or therein and Taxes for which a payment is required pursuant to Section 4.04(a)), (B) a change in changes official reserve requirements, butrequirements (except to the extent covered by Section 1.10(d) in respect of Alternate Currency Loans and, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR Eurodollar Rate, the Canadian Dollar Euro Rate or IBOR the Pounds Sterling Euro Rate) and/or (yc) imposes any other circumstances since the date of this Agreement condition affecting such Bank, the London interbank Eurodollar market Bank or the domestic relevant interbank Eurodollar market or the position of such Bank in either such market; or;
(iii) at any time, that the making or continuance of any Fixed Euro Rate Loan has been made (x) unlawful by any law or governmental rule, regulation or orderChange in Law, (y) impossible by compliance by any Bank in good faith with any governmental request made after the date of this Agreement (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Change in Law which materially and adversely affects the London relevant interbank Eurodollar market or the domestic interbank Eurodollar market; or
(iv) at any time, that such Bank shall incur any Mandatory Costs; then, and in any such event, such Bank (or the Administrative Agent, in the case of clause (i) or (iii)(z) above) shall promptly give notice (by telephone confirmed in writing) to the affected relevant Borrower or Borrowers and, except in the case of clause clauses (i) and (iii)(z) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur). Thereafter (xw) in the case of clause (i) above, LIBOR Rate (A) in the event that Eurodollar Loans and/or IBOR Rate Loansare so affected, as the case may be, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrowers US Borrower and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers US Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindeda request for Base Rate Loans by the US Borrower and (B) in the event that any Alternate Currency Loans are so affected, the interest rate for such Alternate Currency Loan shall be determined on the basis provided in the proviso to the definition of the respective Euro Rate applicable to such Alternate Currency Loans, (yx) in the case of clause (ii) above, the respective Borrowers relevant Borrower shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole reasonable discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing in reasonable detail the basis for the calculation thereof, based on averaging and attribution methods among customers which are reasonable, submitted to the affected Borrowers such Borrower by such Bank in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and ), (zy) in the case of clause (iii) above, the respective Borrowers relevant Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by lawlaw and (z) in the case of clause (iv) above, the relevant Borrower shall pay to such Bank, upon written demand therefor, such Mandatory Costs.
(b) At any time that any Fixed Euro Rate Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective relevant Borrower may (and in the case of a Fixed Euro Rate Loan affected by the circumstances described in Section 1.10(a)(iii) shall) shall either (x) if the affected Fixed Euro Rate Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic written notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) and, for Eurodollar Loans, deem it to be a request for Base Rate Loans or (y) if the affected Fixed Euro Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative AgentAgent and the affected Bank, and subject to Section 4.02(j), (A) in the case of a Eurodollar Rate Loan, require the affected Bank to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan or repay such Eurodollar Loan in full and (B) in the case of any Alternate Currency Loan, repay such Alternate Currency Loan in full; provided thatthat (i) if the circumstances described in Section 1.10(a)(iii) apply to any Alternate Currency Loan, the Borrower may, in lieu of taking the actions described above, maintain such Alternate Currency Loan outstanding, in which case the relevant Euro Rate shall be determined on the basis provided in the last sentence of the definition of the respective Euro Rate applicable to such Alternate Currency Loan, unless the maintenance of such Applicable Currency Loan outstanding on such basis would not stop the conditions described in Section 1.10(a)(iii) from existing (in which case the actions described above, without giving effect to the proviso, shall be required to be taken) and (ii) if more than one Bank is affected at any time, then all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time Bank shall have determined that, after the date hereof, the adoption or effectiveness of this Agreement any Bank determines that the introduction of or any change in any applicable law law, rule or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agencyagency charged with the interpretation or administration thereof, will have the effect of increasing the amount of capital required or expected to be maintained compliance by such Bank or any corporation controlling such Bank based with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the existence such Bank's or such other corporation's capital or assets as a consequence of such Bank's portion of the Total Commitment or Commitments or Loans hereunder or its obligations hereunderhereunder to a level below that which such Bank or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Bank's or such other corporation's policies with respect to capital adequacy), then from time to time, upon written demand by such Bank (with a copy to the Borrowers Administrative Agent), accompanied by the notice referred to in the penultimate sentence of this clause (c), the US Borrower shall pay to such Bank, promptly upon its written demand therefor, Bank such additional amount or amounts as shall be required to will compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capitalreduction. In determining such additional amounts, each Bank will act reasonably and in good faith and will use reasonable averaging and attribution methods which are reasonable, provided that such Bank's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties heretomethods. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected BorrowersUS Borrower (a copy of which shall be sent by such Bank to the Administrative Agent), which notice shall show set forth in reasonable detail the basis for of the calculation of such additional amounts, provided, however, that although the failure to give any such notice shall not release or diminish any obligation of the Borrowers US Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Bank's reasonable good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto.
(d) In the event that any Bank shall in good faith determine (which determination shall, absent manifest error, be final and conclusive and binding on all parties hereto) at any time that such Bank is required to maintain reserves (including, without limitation, any marginal, emergency, supplemental, special or other reserves required by applicable law) which have been established by any Federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body with jurisdiction over such Bank (including any branch, Affiliate or funding office thereof) in respect of any Alternate Currency Loans or any category of liabilities which includes deposits by reference to which the interest rate on any Alternate Currency Loan is determined or any category of extensions of credit or other assets which includes loans by a non-United States office of any Bank to non-United States residents, then, unless such reserves are included in the calculation of the interest rate applicable to such Alternate Currency Loans or are payable pursuant to Section 1.10(a)(ii)or (iv), such Bank shall promptly notify the relevant Borrower in writing specifying the additional amounts required to indemnify such Bank against the cost of maintaining such reserves (such written notice to provide in reasonable detail a computation of such additional amounts) and such Borrower shall, and shall be obligated to, pay to such Bank such specified amounts as additional interest at the time that such Borrower is otherwise required to pay interest in respect of such Alternate Currency Loan or, if later, on written demand therefor by such Bank.
Appears in 1 contract
Samples: Credit Agreement (Aearo Corp)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender with respect to clauses (ii) and (iii) below or the Administrative Agent with respect to clause (i) below shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agenthereto):
(i) on the second Business Day immediately preceding the making of any Interest Determination Date requested Eurodollar Loan that, by reason of any changes arising after the date of this Agreement hereof affecting the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORthe LIBO Rate; or
(ii) at any time, time that such Bank shall incur Lender has incurred increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan Eurodollar Loan, in each case by an amount such Lender deems to be material, because of (x) any change since the date of this Agreement hereof in any applicable law or governmental law, rule, regulation, order, order or guideline applicable to such Lender or the compliance by such Lender with any request (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof or in the interpretation or administration thereof and including the introduction after the date hereof of any new law or governmental law, rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans such Eurodollar Loan or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits Tax on the Income of such BankLender), pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements(including, butwithout limitation, in all eventsany marginal, excluding reserves required under Regulation D emergency, supplemental, special or other reserve) requirements (except to the extent included in the computation of the LIBOR Adjusted LIBO Rate), or IBOR and/or any special deposit, assessment or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (y) other circumstances since the date of this Agreement affecting such Bank, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such marketits Applicable Lending Office); or
(iii) at any time, time that the making or continuance of any Fixed Rate Eurodollar Loan has been made (xA) unlawful by any law or governmental law, rule, regulation or order, order or (yB) impossible by compliance by any Bank Lender in good faith with any governmental directive or request (whether or not having the force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market); then, and in any such event, such Bank Lender, in the case of clause (ii) or (iii) above, or the Administrative Agent, in the case of clause (i) above) , shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers Borrower, and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. Lenders). Thereafter, (New York time) on the date such Borrowing was to occur. Thereafter (x1) in the case of clause (i) above, LIBOR Rate in the event that Eurodollar Loans and/or IBOR Rate Loansare so affected, as the case may be, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion notices given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y2) in the case of clause (ii) above, the respective Borrowers Borrower shall pay to such BankLender, promptly upon its within 15 days of written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole reasonable discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z3) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(bparagraph (b) as below. Each of the Administrative Agent and the other Credit Parties agree that if it gives notice to the Borrower of any of the events described in clause (i) or (iii) above, it shall promptly as possible notify the Borrower and, in the case of any eventsuch other Lender, within the time period required by lawAdministrative Agent, if such event ceases to exist. If any such event described in clause (i) or (iii) above with respect to Eurodollar Loans ceases to exist as to a Lender, the obligations of such Lender to make Eurodollar Loans and to convert Loans to or continue Loans as Eurodollar Loans on the terms and conditions contained herein shall be reinstated.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii2.12(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii2.12(a)(iii) shall) either (xi) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing borrowing or conversion by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.12(a)(ii) or (iii) or (yii) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative AgentAgent and the affected Lender, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, provided thatan ABR Loan as of the end of the Interest Period then applicable to such Eurodollar Loan or within the time required by law, if more than one Bank is affected at any time, all affected Banks must be treated the same pursuant to this Section 1.10(b)earlier.
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that hereof the introduction of or any change in any applicable law or governmental law, rule, regulation, order, guideline, directive or compliance by such Lender or any corporation controlling such Lender with any request (whether or not having the force of law) from any Governmental Authority or central bank concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authorityGovernmental Authority or central bank, central bank or comparable agencyin each case made subsequent to the date hereof, will have the effect of increasing reducing the amount rate of return on the capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such BankLender's portion of the Total Commitment hereunder or its obligations hereunderhereunder to a level below that which such Lender or such corporation could have achieved but for such application or compliance (taking into account such Lender's or such corporation's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, then the Borrowers Borrower shall pay to such BankLender, promptly upon within 15 days of its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capitalreduction. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, ; provided that such BankLender's reasonable good faith determination of compensation owing under this Section 1.10(c) paragraph shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c)paragraph, will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show the basis for calculation of such additional amounts.
(d) Each Lender shall notify the Borrower of any event occurring after the Effective Date entitling such Lender to compensation under this Section 2.12 as promptly as practicable, provided, however, but in any event within 30 days after the officer having primary responsibility for this Agreement obtains actual knowledge thereof; provided that failure to give any no such notice shall be required if such Lender has determined not release to seek compensation under this Section 2.12 as a result of such event. Each Lender will furnish to the Borrower a certificate setting forth the basis and amount of each request by such Lender for compensation under this Section 2.12. Determinations and allocations by any Lender for purposes of this Section 2.12 on its costs or diminish any rate of return of maintaining Loans or its obligation to make Loans, or on amounts receivable by it in respect of Loans, and of the Borrowers amounts required to pay additional amounts pursuant to compensate such Lender under this Section 1.10(c2.12 shall be prima facie evidence of such determinations and allocations.
(e) upon receipt Notwithstanding the foregoing, no Lender shall be entitled to any compensation described in this Section 2.12 unless, at the time it requests such compensation, it is the policy or general practice of such Lender to request compensation for comparable costs in similar circumstances under comparable provisions of other credit agreements for comparable customers unless specific facts or circumstances applicable to the Borrower or the transactions contemplated by this Agreement would alter such policy or general practice, provided that nothing in this paragraph shall preclude a Lender from waiving the collection of similar costs from one or more of its other customers.
(f) If any Lender fails to give the notice described in paragraph (d) above within 30 days after it obtains such actual knowledge of the event required to be described in such notice, such Lender shall, with respect to any compensation that would otherwise be owing to such Lender under this Section 2.12, only be entitled to payment for increased costs incurred from and after the date that such Lender does give such notice.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORLIBO Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate LIBOR Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such Bank, Lender pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR LIBO Rate and/or (y) other circumstances arising since the date of this Agreement Effective Date affecting such BankLender, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such marketmarket (including that the LIBO Rate with respect to such LIBOR Loan does not adequately and fairly reflect the cost to such Lender of funding such LIBOR Loan); or
(iii) at any time, that the making or continuance of any Fixed Rate LIBOR Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the Effective Date or since the date of this Agreement such person becomes a Lender, if later, which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate LIBOR Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its such Lender’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate LIBOR Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the respective Borrower may (may, and in the case of a Fixed Rate LIBOR Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), the Borrower shall) , either (x) if the affected Fixed Rate LIBOR Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (y) if the affected Fixed Rate LIBOR Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate LIBOR Loan into a Base Rate Loan, provided that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Effective Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Commitment Lender’s Commitments hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
(d) Notwithstanding anything in this Agreement to the contrary, providedthe Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, howeverrules, that failure guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, shall be deemed to give any such notice shall not release be a change after the Effective Date in a requirement of law or diminish any obligation government rule, regulation or order, regardless of the Borrowers to pay additional amounts pursuant to date enacted, adopted, issued or implemented (including for purposes of this Section 1.10(c) upon receipt of such notice2.10 and Section 3.06).
Appears in 1 contract
Samples: Credit Agreement (Global Cash Access Holdings, Inc.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of clause (i) below, the Administrative Agent or (y) in the case of clauses (ii) and (iii) below, any Bank shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agenthereto):
(i) on any date for determining the Eurodollar Rate for any Interest Determination Date Period that, by reason of any changes arising after the date of this Agreement Effective Date affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan Eurodollar Loans because of (x) any change since the date of this Agreement Effective Date in any applicable law or law, governmental rule, regulation, orderguideline, guideline request or request order (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, orderguideline, guideline request or request, order (such as, for example, but not limited to to, (A) a change in the basis of taxation of payment to any Bank of the principal of or interest on the Loans Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, Bank pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate) and/or (y) other circumstances since occurring after the date of this Agreement Effective Date affecting such Bank, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such market; or
(iii) at any timetime after the Effective Date, that the making or continuance of any Fixed Rate Eurodollar Loan has been made become (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any such Bank in good faith with any law, governmental rule, regulation, guideline, request or order (whether or not having the force of law) or (zy) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank (or the Administrative Agent, Agent in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers Borrower shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole reasonable discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank shall, absent manifest error, be final and conclusive and binding on upon all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in pursuant to Section 1.10(a)(iii) ), the Borrower shall) either (xi) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversionBorrowing, cancel the respective said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that such the Borrower was notified by the affected a Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) ), or (yii) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert each such Fixed Rate Eurodollar Loan into a Base Rate Loan, provided that, that if more than one Bank is so affected at any time, then all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time Bank shall have determined that the adoption or effectiveness after the date Effective Date of this Agreement any Bank determines that the introduction of or any change in any applicable law law, rule or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning regulation regarding capital adequacy, or any change after the Effective Date therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agencyagency charged with the interpretation or administration thereof, will have the effect of increasing the amount of capital required or expected to be maintained compliance by such Bank (or any corporation controlling such Bank based Bank) with any such request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the existence of such Bank's portion (or such controlling corporation's) capital or assets as a consequence of the Total Commitment its commitments or its obligations hereunderhereunder to a level below that which such Bank (or such controlling corporation) could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Bank's (or such controlling corporation's) policies with respect to capital adequacy), then from time to time, within 15 days after written demand by such Bank (with a copy to the Borrowers Administrative Agent and accompanied by the notice described in the last sentence of this Section 1.10(c)), the Borrower shall pay to such Bank, promptly upon its written demand therefor, Bank such additional amount or amounts as shall be required to will compensate such Bank (or such other corporation controlling corporation) for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties heretoreduction. Each Bank, upon determining in good faith that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show set forth the basis for of the calculation of such additional amounts, provided, however, that although the failure to give any such notice shall not release or diminish any obligation of the Borrowers Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank shall have reasonably determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORLIBOR; or
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate LIBOR Loan because of (x) any change since the date of this Agreement in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to (A) a change in the basis of taxation of payment to any Bank of the principal of or interest on the Loans or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR and/or (y) other circumstances since the date of this Agreement affecting such Bank, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate LIBOR Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York Philadelphia time) on the date such Borrowing was to occur. Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers with respect to any affected Fixed Rate LIBOR Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded, (y) in the case of clause (ii) above, the respective Borrowers shall pay to such Bank, promptly upon within five Business Days of its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall reasonably determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers by such Bank shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate LIBOR Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate LIBOR Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (x) if the affected Fixed Rate LIBOR Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date (if practicable) that such Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii), or if such notice is given one Business Day (or such shorter period as may be acceptable to the Administrative Agent) prior to the date scheduled for such Borrowing, change the Type of Loan or (y) if the affected Fixed Rate LIBOR Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert such Fixed Rate LIBOR Loan into a Fed Funds Loan or a Base Rate Loan, provided that, if more than one Bank is affected at any time, all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Bank reasonably determines that the introduction of or any change since the date of this Agreement in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change since the date of this Agreement in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank or any corporation controlling such Bank based on the existence of such Bank's portion of the Total Commitment or its obligations hereunder, then the Borrowers shall pay to such Bank, promptly upon Bank within three Business Days of its written demand therefor, such additional amounts as shall be required to compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, ; provided that the Borrowers shall be permitted, subject to Section 1.11, to mitigate such Bank's determination costs to the extent practicable by either canceling any outstanding Notice of compensation owing under Borrowing or changing the Type of Loan specified in any outstanding Notice of Borrowing as prescribed above in clause (b) of this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected Borrowers, which notice shall show the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice1.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORLIBOR; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans such Loan or any other amounts payable hereunder (except for changes in the rate of tax onimposed on such Lender), or determined by reference to, the net income or profits but without duplication of such Bank, any amounts payable in respect of Taxes pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) Section 3.05, or (B) a change in official reserve requirements, requirements but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR and/or (y) other circumstances arising since the date of this Agreement Effective Date affecting such Bank, Lender or the London interbank Eurodollar market or the domestic interbank Eurodollar market for Dollars or the position of such Bank Lender in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or and/or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar marketfor Dollars; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone and confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate any Notice of Borrowing given by the Borrower with respect to any affected Loans and/or IBOR Rate Loanswhich have not yet been incurred shall be deemed rescinded by the Borrower and the Total Commitment shall thereafter not be available to be borrowed hereunder, and the rate of interest applicable to any affected Loans then outstanding shall be the Base Rate, as in effect from time to time, from the case may be, shall no longer be available date such notice is delivered to the Borrower and thereafter until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers with respect to any affected Fixed Rate Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees, subject to the provisions of Section 1.10 and Section 13.15 (to the extent applicable), to pay to such BankLender, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole reasonable good faith discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for and the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, and subject to Section 1.11, such Lender shall so notify the respective Borrowers Administrative Agent and the Borrower (and the Administrative Agent shall take one promptly give notice thereof to the other Lenders) and thereafter (A) except in the case of an event of the actions specified type described in Section 1.10(bclause (iii)(z) as promptly as possible above, the Commitment of such Lender shall be permanently reduced by an amount sufficient to alleviate such circumstance arising pursuant to clause (iii)(x) or (y) above, or shall be terminated in its entirety if all of such Lender’s Loans are so affected, and the Borrower shall prepay in full the affected Loans of such Lender, together with accrued interest thereon and, in the event of a termination of such Lender’s Commitment, any eventCommitment Commission which may be due to such Lender under this Agreement (and, within in the event all of such Lender’s Loans are being repaid, any other amounts which may be owing to such Lender hereunder (including, without limitation, any accrued and unpaid interest)), on either the last day of the then current Interest Period applicable to each such affected Loan (if such Lender may lawfully continue to maintain and fund such Loans) or immediately (if such Lender may not lawfully continue to maintain and fund such Loans to such day) and (B) in the case of an event of the type described in clause (iii)(z) above, the Commitment of such Lender shall be terminated in its entirety and the Borrower shall pay to such Lender any accrued and unpaid Commitment Commission which may be due to such Lender under this Agreement, and all outstanding Loans of such Lender shall, from the date such notice is delivered to the Borrower and thereafter until such time period required as the Administrative Agent or such Lender shall notify the Borrower that the circumstances giving rise to the operation of clause (iii)(z) above with respect to such Lender no longer exist, bear interest at a rate equal to the Base Rate, as in effect from time to time, it being understood that, notwithstanding anything to the contrary in this Agreement, to the extent any Loans of any Lender affected by lawcircumstances described in clause (iii)(z) above are repaid prior to receipt by the Borrower of the notice described above with respect to the elimination of such circumstances giving rise to the operation of clause (iii)(z) above with respect to such Lender, any amount of the Commitment of such Lender which may otherwise result from such repayment shall be deemed permanently reduced upon the effectiveness of such repayment. The Administrative Agent and each Lender (to the extent it continues to be a Lender hereunder) agree that if any of them gives notice to the Borrower of any of the events described in clause (i) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Lender (to the extent it continues at such time to be a Lender hereunder), the obligations of such Lender to make Loans on the terms and conditions contained herein shall, to the extent of such Lender’s outstanding Loans and Commitments as in effect at such time, be immediately reinstated.
(b) At If any time Lender in good faith determines that any Fixed Rate Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (x) if the affected Fixed Rate Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert such Fixed Rate Loan into a Base Rate Loan, provided that, if more than one Bank is affected at any time, all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Bank determines that Effective Date the introduction of or effectiveness of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, agency will have the effect of increasing the amount of capital required or expected requested to be maintained by such Bank Lender, or any corporation controlling such Bank Lender, based on the existence of such Bank's portion of the Total Commitment Lender’s Commitments hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees, subject to the provisions of Section 13.15 (to the extent applicable), to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c1.09(b) shall, absent manifest error, but subject to the provisions of Section 13.15 (to the extent applicable), be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c1.09(b), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for and calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have reasonably determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) or (iii)(z) below, may be made only by the Administrative AgentAgent or the Required Lenders):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means shall mean do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORLIBOR; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate LIBOR Loan because of (x) of any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to the Administrative Agent or any Bank Lender of the principal of or interest on the Loans or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or thereinExcluded Taxes) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR and/or (y) other circumstances since LIBOR with respect to such LIBOR Loan does not adequately and fairly reflect the date cost to such Lender of this Agreement affecting funding such Bank, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such marketLIBOR Loan; or
(iii) at any time, that the making or continuance of any Fixed Rate LIBOR Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate LIBOR Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees, subject to the provisions of Section 2.11(b) (to the extent applicable), to pay to such BankLender, promptly upon its within 10 Business Days of such Lender’s written demand request therefor (including reasonably supporting documentation therefor), such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate LIBOR Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the respective Borrower may (may, and in the case of a Fixed Rate LIBOR Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), the Borrower shall) , either (x) if the affected Fixed Rate LIBOR Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (y) if the affected Fixed Rate LIBOR Loan is then outstanding, upon at least three (3) Business Days' ’ written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate LIBOR Loan into a Base Rate Loan; provided, provided that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Effective Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Commitment Lender’s Commitments hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees to pay to such BankLender, promptly upon within 10 Business Days of its written demand (including documentation reasonably supporting such request) therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable; provided, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
(d) Notwithstanding anything in this Agreement to the contrary, providedthe Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act and all requests, howeverrules, that failure guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, shall be deemed to give any such notice shall not release be a change after the Effective Date in a requirement of law or diminish any obligation government rule, regulation or order, regardless of the Borrowers to pay additional amounts pursuant to date enacted, adopted, issued or implemented (including for purposes of this Section 1.10(c2.10), other than any final rules, regulations, orders, requests, guidelines or directives under the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act that the Lenders are required to comply with prior to the date of this Agreement (it being understood that payments required as a result of this Section 2.10(d) upon receipt are subject to the provisions of such noticeSection 2.11(b), as and to the extent provided therein).
Appears in 1 contract
Samples: Credit Agreement (Radio One, Inc.)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement Effective Date affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans such Eurodollar Loan or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such BankLender, or any franchise tax based on the net income or net profits of such Lender, in either case pursuant to the laws of the United States of America, the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) ), but without duplication of any amounts payable in respect of Taxes pursuant to Section 4.04(a), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances since the date of this Agreement Effective Date affecting such Bank, the London interbank Eurodollar market Lender or the domestic interbank Eurodollar market or the position of such Bank Lender in either such marketmarket (except as a result of a deterioration in the creditworthiness of such Lender subsequent to the date hereof); or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrowers, (y) in the case of clause (ii) above, the respective Borrowers shall jointly and severally agree to, subject to the provisions of Section 13.15 (to the extent applicable), pay to such BankLender, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing the basis for the calculation thereof, submitted to the affected Borrowers by such Bank Lender in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrowers of any of the events described in clause (i) or (iii) above, it shall promptly notify the Borrowers and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Lender, the obligations of such Lender to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein shall be reinstated.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower Borrowers may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was the Borrowers were notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, provided that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement Effective Date any Bank Lender determines that the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such BankLender's portion of the Total Commitment hereunder or its obligations hereunder, then the Borrowers shall jointly and severally agree, subject to the provisions of Section 13.15 (to the extent applicable), to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such BankLender's reasonable good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected Borrowers, which notice shall show the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 1 contract
Samples: Credit Agreement (Furniture Brands International Inc)
Increased Costs, Illegality, etc. (a) In the event that any Bank shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement Original Effective Date affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change Change in Law since the date of this Agreement in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or requestOriginal Effective Date, such as, for example, but not limited to to: (A) a change in Covered Taxes resulting from the basis of taxation of payment to any Bank of the principal of or interest on the Loans such Eurodollar Loan or any other amounts payable hereunder (except for changes hereunder, but without duplication of any amounts payable in the rate respect of tax on, or determined by reference to, the net income or profits of such Bank, Taxes pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) Section 4.04(a), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances since the date of this Agreement Original Effective Date affecting such Bank, the London interbank Eurodollar market Bank or the domestic interbank Eurodollar market or the position of such Bank in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Original Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall at the option of the Borrower (i) be deemed rescindedrescinded by the Borrower or (ii) be deemed to constitute a Notice of Borrowing or Notice of Conversion to, as applicable, Base Rate Loans, (y) in the case of clause (ii) above, the respective Borrowers Borrower shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank reasonably in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers shall take one each Eurodollar Loan of the actions specified affected Bank(s) shall be converted to a Base Rate Loan either on the last day of the then current Interest Period or, if such Bank shall determine that it may not lawfully maintain and fund such Eurodollar Loan to such day, immediately. Each of the Administrative Agent and each Bank agrees that if it gives notice to the Borrower of any of the events described in Section 1.10(bclause (i) as or (iii) above, it shall promptly as possible notify the Borrower and, in the case of any eventsuch Bank, within the time period required by lawAdministrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Bank, the obligations of such Bank to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein shall be reinstated.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii1.11(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii1.11(a)(iii) shall) either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii1.11(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Bank to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, ; provided that, if more than one Bank is affected at any time, then all affected Banks must be treated the same pursuant to this Section 1.10(b1.11(b).
(c) If at any time after the date of this Agreement Original Effective Date, any Bank determines that the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank or any corporation controlling such Bank based on the existence of such Bank's portion of the Total Commitment ’s Commitments hereunder or its obligations hereunder, then the Borrowers Borrower shall pay to such Bank, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will act reasonably and in Such Bank’s reasonable good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's determination of compensation owing under this Section 1.10(c1.11(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c1.11(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show set forth the basis for of the calculation of such additional amounts, provided, however, that although the failure to give any such notice shall not release or diminish any obligation of the Borrowers Borrower’s obligations to pay additional amounts pursuant to this Section 1.10(c1.11(c) upon the subsequent receipt of such notice.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREuro Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Euro Rate Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such Bank, pursuant to the laws of Lender imposed by the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or thereinlocated) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances arising since the date of this Agreement Effective Date affecting such BankLender, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such market; ormarket (whether or not such Lender was a Lender at the time of such occurrence);
(iii) at any time, that the making or continuance of any Fixed Euro Rate Loan has been made (x) unlawful by any law or governmental rule, regulation or order, order (y) impossible by compliance by any Bank in good faith or would conflict with any governmental rule, regulation, guideline, request (whether or order not having the force of law) law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawful), or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London applicable interbank Eurodollar market or market; or
(iv) at any time that a Non-Dollar Currency is not available in sufficient amounts, as determined in good faith by the domestic interbank Eurodollar marketAdministrative Agent, to fund any Borrowing of Non-Dollar Denominated Loans requested pursuant to Section 2.01; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (xw) in the case of clause (i) above, LIBOR Rate (A) in the event Eurodollar Loans and/or IBOR Rate Loansare so affected, as the case may be, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies Holdings, the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower and (B) in the event that any Non-Dollar Denominated Loan is so affected, the relevant Euro Rate shall be determined on the basis provided in the proviso to the definition of the relevant Euro Rate, (yx) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a with the written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereofLender, submitted to the affected Borrowers Borrower by such Bank shallLender in accordance with the foregoing to be, absent manifest error, be final and conclusive and binding on all the parties hereto, although the failure to give any such notice shall not release or diminish any of the Borrower's obligations to pay additional amounts pursuant to this Section 2.10(a) and upon the subsequent receipt of such notice), (zy) in the case of clause (iii) above, the respective Borrowers Borrower or shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by lawlaw and (z) in the case of clause (iv) above, Non-Dollar Denominated Loans denominated in the affected Non-Dollar Currency (exclusive of any such Non-Dollar Denominated Loans which have theretofore been funded) shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or notice pursuant to Section 2.03(b)(i) given by the Borrower with respect to such Non-Dollar Denominated Loans which have not been incurred shall be deemed rescinded by the Borrower. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii), (iii) or (iv) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Fixed Euro Rate Loan is affected by the circumstances described in Section 1.10(a)(ii2.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Euro Rate Loan affected by the circumstances described in Section 1.10(a)(iii2.10(a)(iii) shall) either (x) if the affected Fixed Euro Rate Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (y) if the affected Fixed Euro Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, (A) in the case of a Eurodollar Loan, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the circumstance described in Section 2.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law) and (B) in the case of any Euro Rate Loan (other than a Eurodollar Loan), repay all outstanding Borrowings which include such affected Euro Rate Loans in full in accordance with the applicable requirements of Section 5.01; provided that, (i) if the circumstances described in Section 2.10(a)(iii) apply to any Non-Dollar Denominated Loan, the Borrower, may, in lieu of taking the actions described above, maintain such Non-Dollar Denominated Loan outstanding, in which case, (x) in the case of Euro Denominated Loans, the applicable Euro Rate shall be determined on the basis provided in the proviso to the definition of Euro LIBOR or (y) in the case of Sterling Denominated Term Loans, the applicable Euro Rate shall be determined on the basis provided in the proviso to the definition of Sterling LIBOR, as the case may be, unless the maintenance of such Non-Dollar Denominated Loan outstanding on such basis would not stop the conditions described in Section 2.10(a)(iii) from existing (in which case the actions described above, without giving effect to the proviso, shall be required to be taken) and (ii) if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Effective Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such BankLender's portion of the Total Commitment Revolving Loan Commitments hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such BankLender's determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show the set forth such Lender's basis for calculation asserting its rights under this Section 2.10(c) and the calculation, in reasonable detail, of such additional amountsamounts claimed hereunder, provided, however, that although the failure to give any such notice shall not release or diminish any obligation of the Borrowers Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c2.10(c) upon the subsequent receipt of such notice. A Lender's good faith determination of compensation owing under this Section 2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. In the event that any Lender shall in good faith determine (which determination shall, absent manifest error, be final and conclusive and binding on all parties hereto) at any time that such Lender is required to maintain reserves (including, without limitation, any marginal, emergency, supplemental, special or other reserves required by applicable law) which have been established by any Federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body with jurisdiction over such Lender (including any branch, Affiliate or funding office thereof) in respect of any Non-Dollar Denominated Loans or any category of liabilities which includes deposits by reference to which the interest rate on any Non-Dollar Denominated Loan is determined or any category of extensions of credit or other assets which includes loans by a non-United States office of any Lender to non-United States residents, then, unless such reserves are included in the calculation of the interest rate applicable to such Non-Dollar Denominated Loans or in Section 2.10(a)(ii), such Lender shall promptly notify Holdings and the Borrower in writing specifying the additional amounts required to indemnify such Lender against the cost of maintaining such reserves (such written notice to provide in reasonable detail a computation of such additional amounts) and the Borrower shall pay to such Lender such specified amounts as additional interest at the time that the Borrower is otherwise required to pay interest in respect of such Non-Dollar Denominated Loan or, if later, on written demand therefor by such Lender.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that (x) in --------------------------------- the case of clause (i) below, the Administrative Agent or (y) in the case of clauses (ii) and (iii) below, any Bank Bank, shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agenthereto):
(i) on any Interest Determination Date Date, that, by reason of any changes arising after the date of this Agreement Effective Date affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan Eurodollar Loans because of (x) any change since the date of this Agreement in any applicable law or law, governmental rule, regulation, orderguideline, guideline order or request (whether or not having the force of law) ), or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, orderguideline, guideline order or request, such as, for example, but not limited to to, (A) a change in the basis of taxation of payment to any Bank of the principal of or interest on the such Eurodollar Loans or any other amounts payable hereunder (except for changes in the rate of with respect to any tax imposed on, or determined by reference to, the net income, net profits or capital (including branch profits tax) of such Bank or any franchise tax based on the net income or net profits of such Bank, Bank pursuant to the laws of the jurisdiction in which it such Bank is organized organized, or in which its such Bank's principal office or applicable lending office is located or any subdivision thereof or therein) ), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances since the date of this Agreement affecting such Bank, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such market; or
(iii) at any timetime since the date of this Agreement, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) become unlawful by compliance by such Bank with any law or law, governmental rule, regulation regulation, guideline or order, order (y) impossible by compliance by any Bank in good faith or would conflict with any governmental rule, regulation, guideline, request (whether or order not having the force of law) law but with which such Bank customarily complies even though the failure to comply therewith would not be unlawful), or (z) has become impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank ;
(or a) upon the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent subsequent receipt of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur. Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers with respect to any affected Fixed Rate Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded, (y) in the case of clause (ii) above, the respective Borrowers shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers by such Bank shall, absent manifest error, be final and conclusive and binding on all the parties heretonotice) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in pursuant to Section 1.10(a)(iii) ), the Borrower shall) either (xi) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversionBorrowing, cancel the respective said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that such the Borrower was notified by the affected a Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) )), or (yii) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert each such Fixed Rate Eurodollar Loan into a Base Rate LoanLoan (which conversion, provided thatin the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided, that if more than one Bank is affected at any time, then all -------- affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time Bank shall have determined that after the date Effective Date, the adoption or effectiveness of this Agreement any Bank determines that the introduction of or any change in any applicable law law, rule or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agencyagency charged with the interpretation or administration thereof, will have the effect of increasing the amount of capital required or expected to be maintained compliance by such Bank or any corporation controlling such Bank based with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the existence such Bank's or such other corporation's capital or assets as a consequence of such Bank's portion of the Total Commitment or Commitments hereunder or its obligations hereunderhereunder to a level below that which such Bank or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Bank's or such other corporation's policies with respect to capital adequacy), then from time to time, upon written demand by such Bank (with a copy to the Borrowers shall Administrative Agent), accompanied by the notice referred to in the last sentence of this clause (c), the Borrower agrees, subject to the provisions of Section 13.18 (to the extent applicable), to pay to such Bank, promptly upon its written demand therefor, Bank such additional amount or amounts as shall be required to will compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as corporation. Each Bank, upon determining in good faith that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a result copy of which shall be sent by such increase Bank to the Administrative Agent), which notice shall set forth in reasonable detail the basis of capital. In determining the calculation of such additional amounts, each Bank will act reasonably and in although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Bank's reasonable good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected Borrowers, which notice shall show the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) Agent):[Reserved]. on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement Closing Date affecting the London interbank Eurodollar market or the domestic Canadian interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR Rate or IBORCanadian B/A Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed LIBOR Rate Loan or B/A Equivalent Loan because of (x) any change since the date of this Agreement Closing Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the official interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, official guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank of the principal of additional Tax imposed on any Lender (except Indemnified Taxes or interest on the Loans Other Taxes indemnified under Section 5.01 or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or thereinExcluded Taxes) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR Rate or IBOR and/or (y) other circumstances since the date of this Agreement affecting such BankCanadian B/A Rate, the London interbank Eurodollar market as applicable; or the domestic interbank Eurodollar market or the position of such Bank in either such market; or
(iii) at any time, that the making or continuance of any Fixed LIBOR Rate Loan or B/A Equivalent Loans has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Closing Date which materially and adversely affects the London interbank Eurodollar market or the domestic Canadian interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) writing to the affected Lead Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, or B/A Equivalent Loans shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Lead Borrower or the Canadian Borrower, as applicable, with respect to any affected Fixed LIBOR Rate Loans or B/A Equivalent Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the applicable Borrowers, (y) in the case of clause (ii) above, each U.S. Borrower, jointly and severally, agrees to pay, and the respective Borrowers shall pay Canadian Borrower agrees to pay, as applicable, to such BankLender, promptly upon its such Lender’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to setting forth the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, shall be submitted to the affected Borrowers Lead Borrower by such Bank Lender and shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and ), (z) in the case of clause (iii) above, the respective Borrowers shall take one of the actions specified in Section 1.10(b3.01(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed LIBOR Rate Loan or B/A Equivalent Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii3.01(a)(ii), the respective Lead Borrower may (or the Canadian Borrower, as applicable, may, and in the case of a Fixed LIBOR Rate Loan or a B/A Equivalent Loan affected by the circumstances described in Section 1.10(a)(iii) 3.01(a)(iii), the Lead Borrower or the Canadian Borrower, as applicable, shall) , on its own behalf or on behalf of the relevant Borrower either (x) if the affected Fixed LIBOR Rate Loan or B/A Equivalent Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic written notice (confirmed in writing) on the same date that such the Lead Borrower or Canadian Borrower, as applicable, was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii3.01(a)(ii) or (iii) or (y) if the affected Fixed LIBOR Rate Loan or B/A Equivalent Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed LIBOR Rate Loan into a U.S. Base Rate Loan or Canadian Base Rate Loan, as applicable, or such B/A Equivalent Loan into a Canadian Prime Loan, provided that, that if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b3.01(b).If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, liquidity or similar requirement (including any compulsory loan requirement, insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender or Issuing Bank (except any such reserve requirement reflected in Term SOFR or the Canadian B/A Rate);
(ii) impose on any Lender, Issuing Bank any other condition, cost or expense (other than Taxes) affecting this Agreement, Loans made by such Lender or Letters of Credit issued by such Issuing Bank; or
(iii) subject any Lender, Issuing Bank or the Administrative Agent to any Taxes (other than (A) Indemnified Taxes, (B) Excluded Taxes or (C) Other Taxes) with respect to its loans, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; and the result of any of the foregoing shall be to increase the cost to such Lender, Issuing Bank or the Administrative Agent of making, continuing, converting or maintaining any Loan (or of maintaining its obligation to make any such Loan) or issuing or participating in any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, Issuing Bank or the Administrative Agent hereunder (whether of principal, interest or otherwise), then the Borrowers will pay to such Lender, Issuing Bank or the Administrative Agent, as the case may be, such additional amount or amounts as will compensate such Lender, Issuing Bank or the Administrative Agent, as the case may be, for such additional costs incurred or reduction.
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Closing Date the introduction of or any change in any applicable law Applicable Law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacyadequacy or liquidity, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital or liquidity required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Commitment Lender’s Commitments hereunder or its obligations hereunder, then each applicable Borrower, (jointly and severally as regards to the Borrowers shall U.S. Borrowers), agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capitalcapital or liquidity. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c3.01(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c3.01(c), will give prompt written notice thereof to the affected BorrowersLead Borrower, which notice shall show in reasonable detail the basis for calculation of such additional amountsamounts.any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, providedif any, howeveras a consequence of this Agreement or the Loans made by such Lender, to a level below that failure which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to give capital adequacy and liquidity), then from time to time the Borrowers will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.
(d) Notwithstanding anything in this Agreement to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III ((x) and (y) collectively referred to as “Xxxx-Xxxxx and Basel III”), shall be deemed to be a change after the Closing Date in a Requirement of Law or government rule, regulation or order, regardless of the date enacted, adopted, issued or implemented (including for purposes of this Section 3.01).If any Lender determines that any Change in Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable lending office to make, maintain or fund Term SOFR Loans or B/A Equivalent Loans, or to determine or charge interest rates based upon Term SOFR or the Canadian B/A Rate, then, on notice shall not release or diminish thereof by such Lender to the Lead Borrower through the Administrative Agent, (a) any obligation of such Lender to make or continue Term SOFR Loans or B/A Equivalent Loans or to convert U.S. Base Rate Loans or Canadian Base Rate Loans to Term SOFR Loans, or Canadian Prime Loans to B/A Equivalent Loans, as applicable, shall be suspended, (b) if such notice asserts the Borrowers illegality of such Lender making or maintaining U.S. Base Rate Loans or Canadian Base Rate Loans the interest rate on which is determined by reference to pay additional amounts pursuant the Term SOFR component of the U.S. Base Rate or the Canadian Base Rate, as applicable, the interest rate on which U.S. Base Rate Loans or Canadian Base Rate Loans, as applicable, of such Lender shall, if necessary to this Section 1.10(cavoid such illegality, be determined by the Administrative Agent without reference to the Term SOFR component of the U.S. Base Rate or Canadian Base Rate, as applicable, in each case, until such Lender notifies the Administrative Agent and the Lead Borrower that the circumstances giving rise to such determination no longer exist, and (c) upon if such notice asserts the illegality of such Lender making or maintaining Canadian Prime Loans the interest rate on which is determined by reference to the Canadian B/A Rate component of the Canadian Prime Rate, the interest rate on which Canadian Prime Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Canadian B/A Rate component of the Canadian Prime Rate, in each case, until such Lender notifies the Administrative Agent and the Lead Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (i) the applicable Borrowers shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay all affected Term SOFR Loans or B/A Equivalent Loans or, if applicable, convert all Term SOFR Loans of such Lender to U.S. Base Rate Loans or Canadian Base Rate Loans, as applicable, or all B/A Equivalent Loans to Canadian Prime Loans, as applicable, either (in the case of Term SOFR Loans and B/A Equivalent Loans) on the last day of the Interest Period or Contract Period, as applicable, therefor, if such Lender may lawfully continue to maintain such Term SOFR Loans or B/A Equivalent Loans to such day, or immediately if such Lender may not lawfully continue to maintain such Term SOFR Loans or B/A Equivalent Loans and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon Term SOFR or the Canadian B/A Rate, the Administrative Agent shall during the period of such suspension compute the U.S. Base Rate or Canadian Base Rate, as applicable, or the Canadian Prime Rate, as applicable, applicable to such Lender without reference to the Term SOFR or
(e) A certificate of a Lender or the Administrative Agent setting forth the amount or amounts necessary to compensate such Lender or the Administrative Agent or its holding company, as the case may be, as specified in clause (b) or (c) of this Section, and certifying that it is the general practice and policy of such Lender to demand such compensation from similarly situated borrowers in similar circumstances at such time to the extent it is legally permitted to do so, shall be delivered to the Lead Borrower and shall be conclusive absent manifest error. The Borrowers shall pay such Lender or the Administrative Agent, as the case may be, the amount shown as due on any such certificate within 10 Business Days after receipt thereof.
(f) (e) Delay in Requests. Failure or delay on the part of any Lender or the Administrative Agent to demand compensation pursuant to the foregoing provisions of this Section 3.01 shall not constitute a waiver of such Lender’s or the Administrative Agent’s right to demand such compensation,; provided that the Borrowers shall not be required to compensate a Lender or the Administrative Agent pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender or the Administrative Agent, as the case may be, notifies the Lead Borrower of the changeChange in lawLaw giving rise to such increased costs or reductions and of such Lender’s or the Administrative Agent’s intention to claim compensation therefor (except; provided, further , that, if the changeChange in lawLaw 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, Illegality, etc. (a) In the event that any Bank shall --------------------------------- have reasonably determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative AgentAgents):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOR; or
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan because of (x) any change since the date of this Agreement in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to (A) a change in the basis of taxation of payment to any Bank of the principal of or interest on the Loans or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR and/or (y) other circumstances since the date of this Agreement affecting such Bank, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank (or the Administrative AgentAgents, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Operations Agent of such determination (which notice the Administrative Operations Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur. Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Operations Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Operations Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers with respect to any affected Fixed Rate Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded, (y) in the case of clause (ii) above, the respective Borrowers shall pay to such Bank, promptly upon within five Business Days of its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall reasonably determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers by such Bank shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (x) if the affected Fixed Rate Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert such Fixed Rate Loan into a Base Rate Loan, provided that, if more than one Bank is affected at any time, all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Bank determines that the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank or any corporation controlling such Bank based on the existence of such Bank's portion of the Total Commitment or its obligations hereunder, then the Borrowers shall pay to such Bank, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected Borrowers, which notice shall show the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.clause
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change since the date of this Agreement in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans such Eurodollar Loan or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such BankLender, or any franchise tax based on the net income or profits of such Lender, in either case pursuant to the laws of the United States of America, the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) ), but without duplication of any amounts payable in respect of Taxes pursuant to Section 4.04(a), or (B) a change in official reserve requirements, requirements but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR and/or (y) other circumstances since the date of this Agreement affecting such Bank, the London interbank Eurodollar market Lender or the domestic interbank Eurodollar market or the position of such Bank Lender in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, and/or (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the
(a) upon the case subsequent receipt of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers with respect to any affected Fixed Rate Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded, (y) in the case of clause (ii) above, the respective Borrowers shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers by such Bank shall, absent manifest error, be final and conclusive and binding on all the parties heretonotice) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Lender, the obligations of such Lender to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein shall be reinstated.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and and, in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) ), shall) either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate LoanLoan on the earlier of the date required by law or the last day of the Interest Period applicable to such Eurodollar Loans, provided PROVIDED that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Bank Lender determines that the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, in each case introduced or changed after the date hereof, will have the effect of increasing the amount of capital required or expected requested to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such BankLender's portion of the Total Commitment Commitments hereunder or its obligations hereunder, then the Borrowers shall Borrower shall, subject to the provisions of Section 13.15 (to the extent applicable), pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided PROVIDED that such BankLender's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for and calculation of such additional amounts, provided, however, that although the failure to give any such notice shall not release or diminish any the Borrower's obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice.
Appears in 1 contract
Samples: Credit Agreement (Pca Valdosta Corp)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of clause (i) below, the Administrative Agent or (y) in the case of clauses (ii) and (iii) below, any Bank Lender, shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agenthereto):
(i) on any Interest Determination Date Date, that, by reason of any changes arising after the date of this Agreement Effective Date affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan Eurodollar Loans because of (x) any change since the date of this Agreement in any applicable law or law, governmental rule, regulation, orderguideline, guideline order or request (whether or not having the force of law) ), or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, orderguideline, guideline order or request, such as, for example, but not limited to to, (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the such Eurodollar Loans or any other amounts payable hereunder (except for changes in the rate of with respect to any tax imposed on, measured by or determined by reference to, the net income or income, net profits of such Bank, Lender or any franchise tax imposed in lieu thereof pursuant to the laws of the jurisdiction in which it such Lender is organized organized, or in which its such Lender’s principal office or applicable lending office is located or any subdivision thereof or therein); provided, however, that the Borrower’s obligations to pay any additional amounts claimed under this Section 2.10(a)(ii)(x)(A) shall be subject to the provisions contained in Section 5.04(c); provided further that taxes that are otherwise addressed by Section 5.04 are not subject to a claim under this Section 2.10 or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances arising since the date of this Agreement affecting such BankLender, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such marketmarket (whether or not such Lender was a Lender at the time of such occurrence, but subject to the last sentence of Section 13.07(j)); or
(iii) at any timetime since the Effective Date, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) become unlawful by compliance by such Lender with any law or law, governmental rule, regulation regulation, guideline or order, order (y) impossible by compliance by any Bank in good faith or would conflict with any governmental rule, regulation, guideline, request (whether or order not having the force of law) law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawful), or (z) has become impracticable as a result of a change or contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, Agent in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower Borrower, which written notice shall set forth such Lender’s (or Borrowers andthe Administrative Agent’s, as the case may be) basis for asserting its rights under this Section 2.10(a) and the calculation, in reasonable detail, of any such additional amounts claimed hereunder, and (except in the case of clause (i)) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter Thereafter, (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees, subject to the provisions of Section 13.18 (to the extent applicable), to pay to such BankLender, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder but without duplication of any payments due under Section 5.04 (a with the written notice as to the additional amounts amounts, which shall set forth in reasonable detail the basis and calculation thereof, owed to such Bank, showing the basis for the calculation thereofLender, submitted to the affected Borrowers Borrower by such Bank shallLender in accordance with the foregoing to be, absent manifest error, be final and final, conclusive and binding on upon all the parties hereto, although the failure to give any such notice shall not release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 2.10(a) upon the subsequent receipt of such notice) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii2.10(a)(ii) or (iii), the respective Borrower may at its sole option (and in the case of a Fixed Rate Eurodollar Loan affected by pursuant to Section 2.10(a)(iii), the circumstances described in Section 1.10(a)(iii) Borrower shall) either (xi) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversionBorrowing, cancel the respective said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that such the Borrower was notified by the affected Bank or the Administrative Agent a Lender pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) )), or (yii) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written ’ notice to the Administrative Agent, require the affected Bank Lender to convert each such Fixed Rate Eurodollar Loan into a Base Rate LoanLoan (which conversion, in the case of the circumstance described in Section 2.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that, that if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender shall have determined after the date of this Agreement any Bank determines Effective Date that the introduction adoption or effectiveness after the Effective Date of or any change in any applicable law law, rule or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning regulation regarding capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agencyagency charged with the interpretation or administration thereof, will have the effect of increasing the amount of capital required or expected to be maintained compliance by such Bank Lender or any corporation controlling such Bank based Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the existence such Lender’s or such other corporation’s capital or assets as a consequence of such Bank's portion of the Total Lender’s Commitment or Commitments hereunder or its obligations hereunderhereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender’s or such other corporation’s policies with respect to capital adequacy), then from time to time, upon written demand by such Lender (with a copy to the Borrowers shall Administrative Agent), accompanied by the notice referred to in the last sentence of this Section 2.10(c), the Borrower agrees, subject to the provisions of Section 13.18 (to the extent applicable), to pay to such Bank, promptly upon its written demand therefor, Lender such additional amount or amounts as shall be required to will compensate such Bank Lender or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capitalcorporation. In Each Lender, upon determining such additional amounts, each Bank will act reasonably and in good faith that any additional amounts will be payable pursuant to this Section 2.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender’s basis for asserting its rights under this Section 2.10(c) and will use averaging and attribution methods which are reasonablethe calculation, provided that in reasonable detail, of such Bank's additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower’s obligations to pay additional amounts pursuant to this Section 2.10(c) upon the subsequent receipt of such notice. A Lender’s reasonable good faith determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank.
(d) Notwithstanding anything in this Agreement to the contrary, upon determining that any additional amounts will the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, shall be payable pursuant deemed to be a change after the Effective Date in a requirement of law or government rule, regulation or order, regardless of the date enacted, adopted, issued or implemented (including for purposes of this Section 1.10(c2.10 and Section 3.05), will give prompt written notice thereof to the affected Borrowers, which notice shall show the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 1 contract
Samples: Credit Agreement (EnerSys)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such Bank, Lender pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances arising since the date of this Agreement Effective Date affecting such BankLender, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its within five days after (or on such later date or dates as such Lender may indicate in) such Lender's written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (may, and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) ), the Borrower shall) , either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, provided PROVIDED that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Effective Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such BankLender's portion of the Total Commitment Commitments hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees to pay to such BankLender, promptly upon within five days after (or on such later date or dates as such Lender may indicate in) its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided PROVIDED that such BankLender's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 1 contract
Samples: Credit Agreement (Nash Finch Co)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have reasonably determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) or (iii)(z) below, may be made only by the Administrative AgentAgent or the Required Lenders):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORLIBO Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate LIBOR Loan because of (x) of any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to the Administrative Agent, the Collateral Agent or any Bank Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or thereinExcluded Taxes) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR LIBO Rate and/or (y) other circumstances since the date LIBO Rate with respect to such LIBOR Loan does not adequately and fairly reflect the cost to such Lender of this Agreement affecting funding such Bank, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such marketLIBOR Loan; or
(iii) at any time, that the making or continuance of any Fixed Rate LIBOR Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate LIBOR Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees, subject to the provisions of Section 2.11(b) (to the extent applicable), to pay to such BankAgent or Lender, promptly upon its within 10 Business Days of such Agent’s or Lender’s written demand request therefor (including reasonably supporting documentation therefor), such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Agent or Lender in its sole discretion shall determine) as shall be required to compensate such Bank Agent or Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankAgent or Lender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Agent or Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate LIBOR Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the respective Borrower may (may, and in the case of a Fixed Rate LIBOR Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), the Borrower shall) , either (x) if the affected Fixed Rate LIBOR Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (y) if the affected Fixed Rate LIBOR Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate LIBOR Loan into a Base Rate Loan, provided that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Effective Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Commitment Lender’s Commitments hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees to pay to such BankLender, promptly upon within ten (10) Business Days of its written demand (including documentation reasonably supporting such request) therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
(d) Notwithstanding anything in this Agreement to the contrary, provided(i) the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act and all requests, howeverrules, that failure guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to give any such notice Basel III, shall not release be deemed to be a change after the Effective Date in a requirement of law or diminish any obligation government rule, regulation or order, regardless of the Borrowers to pay additional amounts pursuant to date enacted, adopted, issued or implemented (including for purposes of this Section 1.10(c2.10), other than any final rules, regulations, orders, requests, guidelines or directives under the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act or Basel III that the Lenders are required to comply with prior to the date of this Agreement (it being understood that payments required as a result of this Section 2.10(d) upon receipt are subject to the provisions of such noticeSection 2.11(b), as and to the extent provided therein).
Appears in 1 contract
Samples: Credit Agreement (Radio One, Inc.)
Increased Costs, Illegality, etc. (a) In the event that any Bank --------------------------------- Lender shall have reasonably determined (which reasonable determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, Lender pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances arising since the date of this Agreement Effective Date affecting such BankLender, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers Borrower shall pay to such BankLender, promptly upon its such Lender's written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three one Business Days' written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, provided that, if more than one Bank Lender is affected at any such time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Effective Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such BankLender's portion of the Total Commitment Commitments hereunder or its obligations hereunder, then the Borrowers Borrower shall pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such BankLender's determination of compensation owing -------- under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREuro Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Euro Rate Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such Bank, pursuant to the laws of Lender imposed by the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or thereinlocated) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances arising since the date of this Agreement Effective Date affecting such BankLender, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such market; ormarket (whether or not such Lender was a Lender at the time of such occurrence);
(iii) at any time, that the making or continuance of any Fixed Euro Rate Loan has been made (x) unlawful by any law or governmental rule, regulation or order, order (y) impossible by compliance by any Bank in good faith or would conflict with any governmental rule, regulation, guideline, request (whether or order not having the force of law) law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawful), or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London applicable interbank Eurodollar market or market; or
(iv) at any time that a Non-Dollar Currency is not available in sufficient amounts, as determined in good faith by the domestic interbank Eurodollar marketAdministrative Agent, to fund any Borrowing of Non-Dollar Denominated Loans requested pursuant to Section 2.01; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (xw) in the case of clause (i) above, LIBOR Rate (A) in the event Eurodollar Loans and/or IBOR Rate Loansare so affected, as the case may be, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies Holdings, the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower and (B) in the event that any Non-Dollar Denominated Loan is so affected, the relevant Euro Rate shall be determined on the basis provided in the proviso to the definition of the relevant Euro Rate, (yx) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a with the written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereofLender, submitted to the affected Borrowers Borrower by such Bank shallLender in accordance with the foregoing to be, absent manifest error, be final and conclusive and binding on all the parties hereto, although the failure to give any such notice shall not release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 2.10(a) and upon the subsequent receipt of such notice), (zy) in the case of clause (iii) above, the respective Borrowers Borrower or shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by lawlaw and (z) in the case of clause (iv) above, Non-Dollar Denominated Loans denominated in the affected Non-Dollar Currency (exclusive of any such Non-Dollar Denominated Loans which have theretofore been funded) shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or notice pursuant to Section 2.03(b)(i) given by the Borrower with respect to such Non-Dollar Denominated Loans which have not been incurred shall be deemed rescinded by the Borrower. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii), (iii) or (iv) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Fixed Euro Rate Loan is affected by the circumstances described in Section 1.10(a)(ii2.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Euro Rate Loan affected by the circumstances described in Section 1.10(a)(iii2.10(a)(iii) shall) either (x) if the affected Fixed Euro Rate Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (y) if the affected Fixed Euro Rate Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, (A) in the case of a Eurodollar Loan, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the circumstance described in Section 2.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law) and (B) in the case of any Euro Rate Loan (other than a Eurodollar Loan), repay all outstanding Borrowings which include such affected Euro Rate Loans in full in accordance with the applicable requirements of Section 5.01; provided that, (i) if the circumstances described in Section 2.10(a)(iii) apply to any Non-Dollar Denominated Loan, the Borrower, may, in lieu of taking the actions described above, maintain such Non-Dollar Denominated Loan outstanding, in which case, (x) in the case of Euro Denominated Loans, the applicable Euro Rate shall be determined on the basis provided in the proviso to the definition of Euro LIBOR or (y) in the case of Sterling Denominated Term Loans, the applicable Euro Rate shall be determined on the basis provided in the proviso to the definition of Sterling LIBOR, as the case may be, unless the maintenance of such Non-Dollar Denominated Loan outstanding on such basis would not stop the conditions described in Section 2.10(a)(iii) from existing (in which case the actions described above, without giving effect to the proviso, shall be required to be taken) and (ii) if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Effective Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Commitment Lender’s Revolving Loan Commitments hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show the set forth such Lender’s basis for calculation asserting its rights under this Section 2.10(c) and the calculation, in reasonable detail, of such additional amountsamounts claimed hereunder, provided, however, that although the failure to give any such notice shall not release or diminish any obligation of the Borrowers Borrower’s obligations to pay additional amounts pursuant to this Section 1.10(c2.10(c) upon the subsequent receipt of such notice. A Lender’s good faith determination of compensation owing under this Section 2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. In the event that any Lender shall in good faith determine (which determination shall, absent manifest error, be final and conclusive and binding on all parties hereto) at any time that such Lender is required to maintain reserves (including, without limitation, any marginal, emergency, supplemental, special or other reserves required by applicable law) which have been established by any Federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body with jurisdiction over such Lender (including any branch, Affiliate or funding office thereof) in respect of any Non-Dollar Denominated Loans or any category of liabilities which includes deposits by reference to which the interest rate on any Non-Dollar Denominated Loan is determined or any category of extensions of credit or other assets which includes loans by a non-United States office of any Lender to non-United States residents, then, unless such reserves are included in the calculation of the interest rate applicable to such Non-Dollar Denominated Loans or in Section 2.10(a)(ii), such Lender shall promptly notify Holdings and the Borrower in writing specifying the additional amounts required to indemnify such Lender against the cost of maintaining such reserves (such written notice to provide in reasonable detail a computation of such additional amounts) and the Borrower shall pay to such Lender such specified amounts as additional interest at the time that the Borrower is otherwise required to pay interest in respect of such Non-Dollar Denominated Loan or, if later, on written demand therefor by such Lender.
Appears in 1 contract
Samples: Credit Agreement (Dole Food Co Inc)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause clauses (i) and (iv) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORLIBO Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate LIBOR Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a any change that would subject any Lender to any taxes (except for Taxes that are indemnified under Section 5.04 or that would be indemnified under Section 5.04 but for an applicable exclusion thereunder, and the imposition of, or any change in the basis rate of, any Excluded Tax payable by such Lender) on its loans, loan principal, letters of taxation of payment to any Bank of the principal of credit, commitments or interest on the Loans or any other amounts payable hereunder (except for changes in the rate of tax onobligations, or determined by reference toits deposits, the net income reserves, other liabilities or profits of such Bankcapital attributable thereto, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR LIBO Rate or IBOR and/or (yC) other circumstances since the date of this Agreement affecting such Bank, imposes on any Lender or the London interbank Eurodollar market any other condition, cost or the domestic interbank Eurodollar market expense (other than taxes) affecting this Agreement or the position Loans made by such Lender or any Letter of such Bank in either such market; orCredit or participation therein;
(iii) at any time, that the making or continuance of any Fixed Rate LIBOR Loan has been made (xA) unlawful by any law or governmental rule, regulation or order, (yB) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (zC) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market; or
(iv) that for any reason a market for bankers’ acceptances does not exist at any time or the domestic interbank Eurodollar marketLenders cannot for other reasons, after reasonable efforts, readily sell bankers’ acceptances or perform their other obligations under this Agreement with respect to the bankers’ acceptances, or Canadian Dollars are not available in sufficient amounts, in either case as determined in good faith by the Administrative Agent, acting reasonably; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause clauses (i) and (iv) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause clauses (i) and (iv) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (xw) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Company and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate LIBOR Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by such Borrower, (yx) in the case of clause (ii) above, the respective U.S. Borrowers shall (jointly and severally) and the Canadian Borrowers (jointly and severally) agree to pay to such BankLender, promptly upon its within 10 days after the Company’s receipt of such Lender’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole reasonable discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers respective Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto); provided that the Borrowers shall not be required to compensate any Lender pursuant to Section 2.10(a)(ii) for any increased costs or reductions incurred more than 180 days prior to the date that such Lender notifies the Company of the change giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided, further, that, if the change giving rise to such increased costs or reductions is retroactive, then the 180 day period referred to above shall be extended to include the period of retroactive effect thereof, (zy) in the case of clause (iii) above, the respective Borrower or Borrowers shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by law, and (z) in the case of clause (iv) above, and as provided in Schedule 1.01(b), Bankers’ AcceptanceBA Rate Loans or Canadian Dollar Denominated Revolving Loans (exclusive of any such Canadian Dollar Denominated Revolving Loans which have theretofore been funded) shall no longer be available until such time as the Administrative Agent notifies the affected Borrowers and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation with respect to Bankers’ Acceptance Loans or such Canadian Dollar Denominated Revolving Loans given by the respective Borrowers which have not been incurred (including by way of conversion) shall be deemed rescinded by such Borrowers and any outstanding BA Loans shall be converted upon the last day of the Interest Period applicable thereto into a Canadian Prime Rate Loan.
(b) At any time that any Fixed Rate LIBOR Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the respective affected Borrower may (may, and in the case of a Fixed Rate LIBOR Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), such Borrower shall) , either (xi) if the affected Fixed Rate LIBOR Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (yii) if the affected Fixed Rate LIBOR Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate LIBOR Loan into a Base Rate Loan, ; provided that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Effective Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacyadequacy or liquidity, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital or liquidity required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Lender’s Revolving Loan Commitment hereunder or its obligations hereunder, then the U.S. Borrowers shall (jointly and severally) and the Canadian Borrowers (jointly and severally) agree to pay to such BankLender, promptly upon its within 10 days after the Company’s receipt of such Lender’s written demand request therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capitalcapital or liquidity. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, ; provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the affected BorrowersCompany, which notice shall show in reasonable detail the basis for calculation of such additional amounts, provided, however, that although the failure to give any such notice shall not release or diminish any obligation of the Borrowers Borrowers’ obligations to pay additional amounts pursuant to this Section 1.10(c2.10(c) upon the subsequent receipt of such notice; provided that the Borrowers shall not be required to compensate any Lender pursuant to this Section 2.10(c) for any increased costs or reductions incurred more than 180 days prior to the date that such Lender notifies the Company of the change giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided further, that, if the change giving rise to such increased costs or reductions is retroactive, then the 180 day period referred to above shall be extended to include the period of retroactive effect thereof.
(d) Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, in each case shall be deemed to be a change after the Effective Date in a requirement of law or governmental rule, regulation or order, regardless of the date enacted, adopted, issued or implemented (including, without limitation, for purposes of this Section 2.10 and Section 3.06). and (z) it shall be a condition to Lender’s exercise of its rights, if any, under Section 2.10(a)(ii) or Section 2.10(c), as applicable, that such Lender shall generally be exercising its rights with respect to similarly situated borrowers under similar provisions in comparable syndicated credit facilities to which it is a party to the extent contractually permitted to do so and allowed to do so under applicable law.
Appears in 1 contract
Samples: Abl Credit Agreement (Ciena Corp)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement AgreementClosing Date affecting the London interbank Eurodollar market or the domestic Canadian interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR Rate or IBOR; orCanadian B/A Rate;
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed LIBOR Rate Loan or B/A Equivalent Loan because of (x) any change since the date of this Agreement Closing Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the official interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, official guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank of the principal of additional Tax imposed on any Lender (except Indemnified Taxes or interest on the Loans Other Taxes indemnified under Section 5.01 or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or thereinExcluded Taxes) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR Rate or IBOR and/or (y) other circumstances since the date of this Agreement affecting such BankCanadian B/A Rate, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such marketas applicable; or
(iii) at any time, that the making or continuance of any Fixed LIBOR Rate Loan or B/A Equivalent Loans has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Closing Date which materially and adversely affects the London interbank Eurodollar market or the domestic Canadian interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) writing to the affected Lead Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, or B/A Equivalent Loans shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Lead Borrower or the Canadian Borrower, as applicable, with respect to any affected Fixed LIBOR Rate Loans or B/A Equivalent Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the applicable Borrowers, (y) in the case of clause (ii) above, each U.S. Borrower, jointly and severally, agrees to pay, and the respective Borrowers shall pay Canadian Borrower agrees to pay, as applicable, to such BankLender, promptly upon its such Lender’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to setting forth the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, shall be submitted to the affected Borrowers Lead Borrower by such Bank Lender and shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and ), (z) in the case of clause (iii) above, the respective Borrowers shall take one of the actions specified in Section 1.10(b3.01(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed LIBOR Rate Loan or B/A Equivalent Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii3.01(a)(ii), the respective Lead Borrower may (or the Canadian Borrower, as applicable, may, and in the case of a Fixed LIBOR Rate Loan or a B/A Equivalent Loan affected by the circumstances described in Section 1.10(a)(iii) 3.01(a)(iii), the Lead Borrower or the Canadian Borrower, as applicable, shall) , on its own behalf or on behalf of the relevant Borrower either (x) if the affected Fixed LIBOR Rate Loan or B/A Equivalent Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic written notice (confirmed in writing) on the same date that such the Lead Borrower or Canadian Borrower, as applicable, was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii3.01(a)(ii) or (iii) or (y) if the affected Fixed LIBOR Rate Loan or B/A Equivalent Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed LIBOR Rate Loan into a U.S. Base Rate Loan or Canadian Base Rate Loan, as applicable, or such B/A Equivalent Loan into a Canadian Prime Loan, provided that, that if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b3.01(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Closing Date the introduction of or any change in any applicable law Applicable Law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacyadequacy or liquidity, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital or liquidity required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Commitment Lender’s Commitments hereunder or its obligations hereunder, then each applicable Borrower, (jointly and severally as regards to the Borrowers shall U.S. Borrowers), agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capitalcapital or liquidity. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c3.01(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c3.01(c), will give prompt written notice thereof to the affected BorrowersLead Borrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
(d) Notwithstanding anything in this Agreement to the contrary, provided(x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, howeverrules, that failure guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to give any such notice Basel III ((x) and (y) collectively referred to as “Xxxx-Xxxxx and Basel III”), shall not release be deemed to be a change after the Closing Date in a Requirement of Law or diminish any obligation government rule, regulation or order, regardless of the Borrowers to pay additional amounts pursuant to date enacted, adopted, issued or implemented (including for purposes of this Section 1.10(c) upon receipt of such notice3.01).
Appears in 1 contract
Increased Costs, Illegality, etc. If --------------------------------- (a) In the event that any Bank shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(ix) on any Interest Determination LIBOR Lock-In-Date that, by reason of any changes arising after the date of this Agreement hereof affecting the London interbank Eurodollar market or the domestic interbank Interbank Eurodollar market, adequate and fair means do not exist for ascertaining as certaining the applicable interest rate on the basis provided for in the definition of LIBOR LIBOR; or IBOR; or
(iiy) at any time, that such the Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate LIBOR Loan because of (x) any change since the date of this Agreement hereof in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a AA)a change in the basis of taxation of payment or payments to any Bank of the principal of or interest on the LIBOR Loans or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by in reference to, the net income or profits of such Bank, Bank pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) ); or (BBB) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR and/or (yCC) other circumstances since the date of this Agreement hereof affecting such Bank, Bank or the London interbank Eurodollar market or the domestic interbank Interbank Eurodollar market or the position of such Bank in either such market; or
or (iiiz) at any time, that the making or continuance of any Fixed Rate LIBOR Loan has been made becomes (xAA) unlawful by any law or governmental rule, regulation or order, (yBB) impossible by compliance by any Bank in good faith with any governmental requirement or request (whether or not having force of law) ), or (zCC) impracticable as a result of a contingency occurring after the date of this Agreement hereof which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Interbank Eurodollar market; then, and in any such event, such Bank (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected notify Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurdetermination. Thereafter (xaa) in the case of clause (ix) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Agent this circumstance no longer existexists, and any Notice requested advance under a revolving loan or line of Borrowing credit or Notice notice of Conversion conversion/continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate LIBOR Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by Borrower, (ybb) in the case of clause (iiy) above, the respective Borrowers Borrower shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, calculating interest or otherwise otherwise, as such Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, Bank showing the basis for the calculation thereof, submitted to the affected Borrowers by such Bank shallBorrower, absent manifest error, shall be final and conclusive and binding on all the parties hereto) binding), and (zcc) in the case of clause (iiiz) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as follows as promptly as possible and, in any event, within the time period required by law.
(b) . At any time that any Fixed Rate LIBOR Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may above (and in the case of a Fixed Rate LIBOR Loan affected by the circumstances described in Section 1.10(a)(iiiSubsection (z) shallabove) Borrower shall either (xAA) if the affected Fixed Rate LIBOR Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic Bank telephone notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) Bank, or (iii) or (yBB) if the affected Fixed Rate LIBOR Loan is then outstanding, upon by giving Bank at least three Business (3) Banking Days' written notice to the Administrative Agentnotice, require the affected Bank to convert such Fixed Rate LIBOR Loan into a Prevailing Base Rate Loan, provided that, if more than one Bank is affected at any time, all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Bank determines that the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank or any corporation controlling such Bank based on the existence of such Bank's portion of the Total Commitment or its obligations hereunder, then the Borrowers shall pay to such Bank, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected Borrowers, which notice shall show the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause clauses (i) and (iv) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate as to Loans constituting LIBOR Loans or EURIBOR Loans on the basis provided for in the definition of LIBOR or IBOREURIBOR, as applicable; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder or a reduction in the rate of return or on a Lender’s (or its Affiliate’s) overall capital, in each case, with respect to any Fixed Rate LIBOR Loan or EURIBOR Loan because of (xA) any change since the date of this Agreement Effective Date in any applicable law Applicable Law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such asas to, without limitation, (1) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for examplethe account of, but not limited to (A) a change or credit extended or participated in the basis of taxation of payment to by, any Bank of the principal of or interest on the Loans or any other amounts payable hereunder Lender (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR and/or EURIBOR); (2) subject any Recipient to any Taxes (other than (x) Indemnified Taxes or (y) Other Connection Taxes that are imposed on or measured by net income or that are franchise Taxes or branches profits Taxes) on its loans, loan principal, letters of credit, commitments, or other circumstances since the date of this Agreement affecting such Bankobligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (3) impose on any Lender or the London interbank Eurodollar 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 and/or (B) other circumstances arising since the domestic Effective Date affecting such Lender, the interbank Eurodollar eurodollar market or the position of such Bank Lender in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate LIBOR Loan or EURIBOR Loan has been made (xA) unlawful by any law or governmental rule, regulation or order, (yB) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (zC) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar eurodollar market; or
(iv) that for any reason a market for bankers’ acceptances does not exist at any time or the domestic interbank Eurodollar marketLenders cannot for other reasons, after reasonable efforts, readily sell bankers’ acceptances or perform their other obligations under this Agreement with respect to the Bankers’ Acceptance Loans, in each case, as determined in good faith by the Administrative Agent; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) or (iv) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers US Company and, except in the case of clause (i) or (iv) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (xw) in the case of clause (i) above, US Revolving Loans constituting US LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers US Company and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate US LIBOR Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by such Borrower, (yx) in the case of clause (ii) above, the respective US Borrowers, the UK Borrowers shall and the Canadian Borrowers, jointly and severally, agree to pay to such BankLender, promptly as applicable, upon its such Lender’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers US Company by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and ), (zy) in the case of clause (iii) above, the respective Borrower or Borrowers shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by lawlaw and (z) in the case of clause (iv) above, Bankers’ Acceptance Loans (exclusive of Bankers’ Acceptance Loans which have theretofore been funded) shall no longer be available until such time as the Administrative Agent notifies the Canadian Borrowers and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing given by any Canadian Borrower with respect to such Bankers’ Acceptance Loans which have not been incurred shall be deemed rescinded by such Canadian Borrower.
(bi) At In the case of US Revolving Loans, at any time that any Fixed Rate US Revolving Loan constituting a US LIBOR Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the respective affected Borrower may (may, and in the case of a Fixed Rate US LIBOR Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), the affected Borrower shall) , either (x1) if the affected Fixed Rate US LIBOR Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (y2) if the affected Fixed Rate US LIBOR Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate US Revolving Loan constituting a US LIBOR Loan into a Base Rate Loan, ; provided that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b); and (ii) in the case of UK Revolving Loans, at any time that any of the UK Revolving Loans is affected by the circumstances described in Section 2.10(a)(iii) then the relevant Borrower shall repay the applicable Lender’s participation in that UK Revolving Loan on the last day of the Interest Period for such UK Revolving Loan or, if earlier, the date specified by the Lender in the notice delivered to the Administrative Agent (being no earlier than the last day of any applicable grace period permitted by law). Further, at any time that any of the UK Revolving Loans is affected by the circumstances described in Section 2.10(a)(i) then the applicable LIBOR or EURIBOR, as applicable, shall be calculated in respect of each Lender as the percentage rate of interest per annum reflecting such Lender’s cost of funding its participation in the UK Revolving Loans from whatever source it may reasonably select.
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Effective Date the introduction of or any change in any applicable law Applicable Law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Lender’s Revolving Loan Commitment hereunder or its obligations hereunder, then the US Borrowers, the UK Borrowers shall and the Canadian Borrowers, jointly and severally, agree to pay to such BankLender, promptly as applicable, upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, ; provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the affected BorrowersUS Company, which notice shall show in reasonable detail the basis for calculation of such additional amounts, provided, however, that failure .
(d) Failure or delay on the part of any Lender to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts demand compensation pursuant to this Section 1.10(c) upon receipt shall not constitute a waiver of such noticeLender’s right to demand such compensation; provided that (x) the affected Borrower or Borrowers shall not be required to compensate a Lender pursuant to this Section 2.10 for any increased costs or reductions incurred more than 180 days prior to the date on which such Lender notifies the Borrowers of the change in law or other circumstance described in Section 2.10(a)(ii) or 2.10(c) giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor and (y) if such change in law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof (to the extent that such period of retroactive effect is not already included in such 180-day period).
(e) Notwithstanding anything in this Agreement to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States, Canadian, United Kingdom or foreign regulatory authorities, in each case pursuant to Basel III, in each case shall be deemed to be a change after the Effective Date in a requirement of law or government rule, regulation or order, regardless of the date enacted, adopted, issued or implemented (including for purposes of this Section 2.10 and Sections 3.16, 3.17 and 3.18).
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of clause (i) below, the Administrative Agent or (y) in the case of clauses (ii) and (iii) below, any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agenthereto):
(i) on any date for determining the Eurodollar Rate for any Interest Determination Date Period that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR Eurodollar Rate or IBOR; orthe making or continuance of any Eurodollar Loan has become impracticable as a result of a contingency occurring after the Closing Date;
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan Eurodollar Loans because of (x) any change since the date of this Agreement Closing Date in any applicable law or law, governmental rule, regulation, order, guideline or request order (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for exampleorder) (including, but not limited to (A) to, a change in the basis of taxation of payment payments to any Bank a Lender of the principal of or interest on the Loans or any other amounts payable hereunder (except for (i) changes in the rate of tax on, or determined by reference to, the net income or net profits of such Bank, pursuant to the laws of Lender imposed by the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or and (ii) any subdivision thereof or thereintaxes for which the Borrower is not liable to pay under Section 3.05) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate) and/or (y) other circumstances since affecting the date of this Agreement affecting such Bank, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) become unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank such Lender in good faith with any law, governmental request rule, regulation, guideline or order (whether or would conflict with any such governmental rule, regulation, guideline or order not having the force of law) or (z) impracticable as a result of a contingency occurring after law but with which such Lender customarily complies even though the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar marketfailure to comply therewith would not be unlawful); then, and in any such event, such Bank Lender (or the Administrative Agent, Agent in the case of clause (i) above) shall promptly (x) on such date and (y) within ten Business Days of the date on which such event no longer exists give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers Borrower shall pay to such BankLender, promptly upon its within 10 Business Days after the Borrower’s receipt of written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole reasonable discretion shall determinedetermine after consultation with the Borrower) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing describing the basis for such increased costs and showing the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on upon all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in pursuant to Section 1.10(a)(iii) shall), the Borrower shall within the time period required by law) either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversionBorrowing, cancel the respective said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that such the Borrower was notified by the affected Bank or the Administrative Agent a Lender pursuant to Section 1.10(a)(ii) or (iii) ), or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written ’ notice to the Administrative Agent, require the affected Bank Lender to convert each such Fixed Rate Eurodollar Loan into a Base Rate LoanLoan (which conversion, provided thatin the case of the circumstances described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan (or such earlier date as shall be required by applicable law)); provided, that if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Bank determines Lender shall have determined that the introduction adoption or effectiveness of or any change in any applicable law law, rule or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agencyagency charged with the interpretation or administration thereof, will in each case after the Closing Date, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency first made after the Closing Date, has or would have the effect of increasing reducing the amount rate of return on such Lender’s or its parent corporation’s capital required or expected assets as a consequence of its commitments or obligations hereunder to be maintained a level below that which such Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender’s or its parent corporation’s policies with respect to capital adequacy), then from time to time, within 10 Business Days after demand by such Bank or any corporation controlling such Bank based on Lender (with a copy to the existence of such Bank's portion of Administrative Agent), the Total Commitment or its obligations hereunder, then the Borrowers Borrower shall pay to such Bank, promptly upon its written demand therefor, Lender such additional amount or amounts as shall be required to will compensate such Bank Lender or such other its parent corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capitalreduction. In Each Lender, upon determining such additional amounts, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show describe the basis for such claim and set forth in reasonable detail the calculation of such additional amounts, provided, however, that although the failure to give any such notice shall not release or diminish any obligation of the Borrowers Borrower’s obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have reasonably determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOR“LIBO Rate”; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate LIBOR Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, Table of Contents guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for changes increased costs attributable to Taxes indemnified under Section 5.04(a), and excluding costs attributable to the imposition of, or a change in the rate of tax onof, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) Excluded Tax); or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR LIBO Rate and/or (y) other circumstances arising since the date of this Agreement Effective Date affecting such BankLender, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such marketmarket (including that the LIBO Rate with respect to such LIBOR Loan does not adequately and fairly reflect the cost to such Lender of funding such LIBOR Loan); or
(iii) at any time, that the making or continuance of any Fixed Rate LIBOR Loan has been made (x) unlawful by any law or governmental rule, regulation or order, or (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market); then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate LIBOR Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower (or if requested by the Borrower, deemed a request for Base Rate Loans), (y) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees, subject to the provisions of Section 2.11(b) (to the extent applicable), to pay to such BankLender, promptly upon its following such Lender’s written demand request (including documentation reasonably supporting such request) therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion (in accordance with generally accepted financial practices) shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate LIBOR Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the respective Borrower may (may, and in the case of a Fixed Rate LIBOR Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), the Borrower shall) , either (x) if the affected Fixed Rate LIBOR Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert such Fixed Rate Loan into a Base Rate Loan, provided that, if more than one Bank is affected at any time, all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Bank determines that the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank or any corporation controlling such Bank based on the existence of such Bank's portion of the Total Commitment or its obligations hereunder, then the Borrowers shall pay to such Bank, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected Borrowers, which notice shall show the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.the
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause clauses (i) and (iv) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR the respective Eurodollar Rate or IBORDeutsche Mark Euro Rate; or
or (ii) at any time, that such Bank xxxx Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan or Deutsche Mark Loan because of (x) any change since the date of this xxxs Agreement in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans such Eurodollar Loan or Deutsche Mark Loan or any other amounts payable hereunder (except excxxx for changes in the rate of tax on, or determined by reference to, the net income or profits of such BankLender, pursuant to the laws of the jurisdiction in which it such Lender is organized or in which its such Lender's principal office or applicable lending office is located or any subdivision thereof or therein) ), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D requirements (except to the extent covered by Section 2.10(d) in respect of Alternate Currency Loans or included in the computation of the LIBOR respective Eurodollar Rate or IBOR Deutsche Mark Euro Rate) or any special deposit, assessment or xxxilar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (or its applicable lending office) and/or (y) other circumstances since the date of this Agreement affecting such Bank, Lender or the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such market; or
or (iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan or Deutsche Mark Loan has been made (x) unlawful by any law or governmental goxxxxmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market market; or (iv) at any time that any Alternate Currency is not available in sufficient amounts, as determined in good faith by the domestic interbank Eurodollar marketAgent, to fund any Borrowing of Alternate Currency Revolving Loans; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) or (iv) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers Company and the German Borrower, as the case may be, and, except in the case of clause (i) or (iv) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (xw) in the case of clause (i) above, LIBOR Rate (A) in the event that Eurodollar Loans and/or IBOR Rate Loansare so affected, as the case may be, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrowers Company and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers Company with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion/continuation) shall be deemed rescindedrescinded by the Company and (B) in the event that any Alternate Currency Loan is so affected, the interest rate for such Alternate Currency Loan shall be determined on the basis provided in the proviso to the definition of the respective Fixed Rate applicable to such Alternate Currency Loan, (yx) in the case of clause (ii) above, the respective Borrowers Company or the German Borrower, as the case may be, shall pay to such BankLender, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole reasonable discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing the basis for the calculation thereof, submitted to the affected Borrowers Company or the German Borrower, as the case may be, by such Bank Lender in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and ), (zy) in the case of clause (iii) above, the respective Borrowers Company or the German Borrower, as the case may be, shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by lawlaw and (z) in the case of clause (iv) above, Alternate Currency Revolving Loans in the affected Alternate Currency shall no longer be available until such time as the Agent notifies the Company, the German Borrower and the Lenders that the circumstances giving rise to such notice by the Agent no longer exists, and any Notice of Borrowing given by the German Borrower with respect to such Alternate Currency Revolving Loans which have not yet been incurred shall be deemed rescinded by the German Borrower. Each of the Agent and each Lender agrees that if it gives notice to the Company or the German Borrower of any of the events described in clause (i), (iii) or (iv) above, it shall promptly notify the Company and the German Borrower and, in the case of any such Lender, the Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Lender, the obligations of such Lender to make Eurodollar Loans or Deutsche Mark Loans and to convert Base Rate Loans into Eurodollar Xxxxs on the terms and conditions contained herein shall be reinstated.
(b) At any time that any Fixed Rate Eurodollar Loan or Deutsche Mark Loan is affected by the circumstances described in Section 1.10(a)(iiSexxxxn 2.10(a)(ii) or (iii), the respective Borrower Company or the German Borrower, as the case may be, may (and in the case of a Fixed Rate Eurodollar Loan or Deutsche Mark Loan affected by the circumstances described in Section 1.10(a)(iiiSectixx 0.10(a)(iii) shall) either (x) if the affected Fixed Rate Eurodollar Loan or Deutsche Mark Loan is then being made initially or pursuant to a conversioncoxxxxsion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative AgentAgent and the affected Lender, (A) in the case of a Eurodollar Loan, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan and (B) in the case of any Alternate Currency Loan, repay such Alternate Currency Loan in full, provided that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Effective Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such BankLender's portion of the Total Commitment Commitments hereunder or its obligations hereunder, then the Borrowers shall Company and the German Borrower jointly and severally agree to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, ; provided that such BankLender's reasonable good faith determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the affected BorrowersCompany and the German Borrower, which notice shall show the basis for calculation of such additional amounts.
(d) In the event that any Lender shall determine (which determination shall, providedabsent manifest error, howeverbe final and conclusive and binding on all parties hereto) at any time that such Lender is required to maintain reserves (including, that failure without limitation, any marginal, emergency, supplemental, special or other reserves required by applicable law) which have been established by any Federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body with jurisdiction over such Lender (including any branch, Affiliate or funding office thereof) in respect of any Alternate Currency Loans or any category of liabilities which includes deposits by reference to give which the interest rate on any Alternate Currency Loan is determined or any category of extensions of credit or other assets which includes loans by a non-United States office of any Lender to non-United States residents, then, unless such notice shall not release or diminish any obligation reserves are included in the calculation of the Borrowers interest rate applicable to such Alternate Currency Loans or in Section 2.10(a)(ii), such Lender shall promptly notify the Company and the German Borrower in writing specifying the additional amounts required to indemnify such Lender against the cost of maintaining such reserves (such written notice to provide in reasonable detail a computation of such additional amounts) and the German Borrower shall pay to such Lender such specified amounts as additional interest at the time that the German Borrower is otherwise required to pay interest in respect of such Alternate Currency Loan or, if later, on written demand therefor by such Lender.
(e) If any Lender requests compensation under this Section 2.10, or if the Company or the German Borrower, as the case may be, is required to pay any additional amounts amount to any Lender pursuant to this Section 1.10(c) upon receipt 2.10, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such noticeLender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to this Section 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. The Company and the German Borrower hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(f) If any Lender requests compensation under this Section 2.10, or if the Company or the German Borrower, as the case may be, is required to pay any additional amount to any Lender pursuant to this Section 2.10, or if any Lender defaults in its obligation to fund Loans hereunder, then the Company or the German Borrower, as the case may be, may, at its sole expense and effort, upon notice to such Lender and the Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 11.4), all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment, or any other party); provided that (i) the Company or the German Borrower, as the case may be, shall have received the prior written consent of the Agent, which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and Letter of Credit Participation, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company of the German Borrower, as the case may be (in the case of all other amounts), and (iii) in the case of any such assignment resulting from a claim for compensation under this Section, such assignment will result in a reductions in such compensation or payments. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company or the German Borrower, as the case may be, to require such assignment and delegation cease to apply.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement Restatement Effective Date affecting the London interbank Eurodollar market or the domestic applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change since the date of this Agreement Restatement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on such Eurodollar Loans or the Loans Notes or any other amounts payable hereunder (except for (A) Taxes, which shall be governed by Section 5.04, and (B) changes in the rate of tax on, or determined by reference to, the net income or net profits of such Bank, Lender pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances arising since the date of this Agreement Restatement Effective Date affecting such BankLender, the London interbank Eurodollar market or the domestic applicable interbank Eurodollar market or the position of such Bank Lender in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Restatement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its such Lender’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole reasonable discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the any applicable time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the respective Borrower may (may, and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), the Borrower shall) , either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, provided that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Restatement Effective Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Commitment Lender’s Commitments hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
(d) Notwithstanding anything in this Agreement to the contrary, provided(x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, howeverrules, that failure guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to give any such notice Basel III, shall not release in each case be deemed to be a change after the Restatement Effective Date in a requirement of law or diminish any obligation governmental rule, regulation or order, regardless of the Borrowers to pay additional amounts pursuant to date enacted, adopted, issued or implemented for all purposes under or in connection with this Agreement (including this Section 1.10(c) upon receipt of such notice2.10 and Section 3.06).
Appears in 1 contract
Samples: Credit Agreement (Pyramid Communication Services, Inc.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of clause (i) below, the Administrative Agent or (y) in the case of clauses (ii) and (iii) below, any Bank Lender, shall have reasonably determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agenthereto):
(i) on any Interest Determination Date Date, that, by reason of any changes arising after the date of this Agreement Effective Date affecting the London relevant interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOR“LIBOR”; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate LIBOR Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline guideline, or request (whether or not having the force of law) ), or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, request such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the LIBOR Loans or the Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income (or profits any franchise tax based on net income) of such Bank, Lender pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding any reserves required under Regulation D to the extent such reserves have been included in the computation of the LIBOR or IBOR and/or (y) other circumstances since occurring after the date of this Agreement Effective Date affecting such BankLender, the London relevant interbank Eurodollar market or the domestic interbank Eurodollar LIBOR market or the position of such Bank Lender in either such market; or
(iii) at any timetime since the Effective Date, that the making or continuance of any Fixed Rate LIBOR Loan has been made (x) unlawful by any law or law, governmental rule, regulation regulation, guideline or orderorder (or would conflict with any such governmental rule, regulation, guideline or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawful), or (y) impossible by compliance by any Bank in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London relevant interbank Eurodollar market or the domestic interbank Eurodollar LIBOR market; then, and in any such event, such Bank Lender (or the Administrative Agent, Agent in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on Lenders). After the date occurrence of any such Borrowing was to occur. Thereafter event, (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available and (A) any Notice of Borrowing given by the Borrower with respect to LIBOR Loans which have not yet been incurred shall, at the Borrower’s option upon notice to the Administrative Agent, either be deemed rescinded by the Borrower or converted into a Notice of Borrowing for Base Rate Loans, and (B) each outstanding LIBOR Loan shall be deemed converted into a Borrowing of Base Rate Loans, in each case until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer existexist (at which time, and any Notice of Borrowing or Notice of Conversion given by any of on the Borrowers with respect to any affected Fixed third Business Day following such notice, such Base Rate Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedreconverted into LIBOR Loans with an Interest Period of one month), (y) in the case of clause (ii) above, the respective Borrowers Borrower shall pay to such BankLender, promptly upon within five Business Days after its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender prepared in good faith, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on upon all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b1.5(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate LIBOR Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii1.5(a)(ii), the respective Borrower may (may, and in the case of a Fixed Rate LIBOR Loan affected by pursuant to Section 1.5(a)(iii), the circumstances described in Section 1.10(a)(iii) Borrower shall) , either (x) if the affected Fixed Rate LIBOR Loan is then being made initially or pursuant to a conversionSection 1.1(a), cancel the respective said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that such the Borrower was notified by the affected Bank a Lender or the Administrative Agent pursuant to Section 1.10(a)(ii1.5(a)(ii) or (iii) ), as applicable, or require the affected Lender to make its portion of such Borrowing as a Base Rate Loan upon notification thereof to the Administrative Agent, or (y) if the affected Fixed Rate LIBOR Loan is then outstanding, upon at least three Business Days' written ’ notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate affected LIBOR Loan into a Base Rate Loan, provided that, if more than one Bank is affected Loan until such time as such Lender notifies the Borrower and the Administrative Agent that the circumstances specified in Section 1.5(a)(ii) or (iii) giving rise to such conversion no longer exist (at any which time, all on the third Business Day following such notice, such Base Rate Loan shall be deemed reconverted into a LIBOR Loan and having an Interest Period expiring on the last day of the Interest Period originally applicable to the Borrowing of the respective affected Banks must be treated LIBOR Loan (or, as appropriate, on the same pursuant last day of the succeeding Interest Period or Interest Periods originally applicable to this Section 1.10(bthe Borrowing of the respective affected LIBOR Loan)).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Effective Date the introduction of or any change in any applicable law or governmental rule, regulation, guideline, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, body will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Lender’s Commitment hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees to pay to such BankLender, promptly upon within five Business Days after its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c1.5(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c1.5(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts, provided, however, that although the failure to give any such notice shall not release or diminish any the Borrower’s obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c1.5(c).
(d) upon receipt Notwithstanding anything to the contrary contained above in this Section 1.5, unless a Lender gives notice to the Borrower that the Borrower is obligated to pay any amount under this Section 1.5 within 120 days after the later of (x) the date such Lender incurs the respective increased costs, reduction in the amounts received or receivable hereunder or reduction in return of capital or (y) the date such Lender has actual knowledge of its incurrence of the respective increased costs, reduction in the amounts received or receivable hereunder or reduction in return of capital, such Lender only shall be entitled to be compensated for any such amount by the Borrower pursuant to this Section 1.5 to the extent that any such amounts are incurred or suffered on or after the date which occurs 120 days prior to such Lender giving notice to the Borrower that it is obligated to pay the respective amounts pursuant to this Section 1.5; provided, however, that if the circumstances giving rise to such claims have a retroactive effect, such 120-day period shall be extended to include the period of such noticeretroactive effect. This Section 1.5(d) shall have no applicability to any Section of this Agreement other than to this Section 1.5.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of clause (i) below, the Agent or (y) in the case of clauses (ii) and (iii) below, any Bank Bank, shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agenthereto):
(i) on any Interest Determination Date Date, that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan Eurodollar Loans because of (x) any change since the date of this Agreement in any applicable law or law, governmental rule, regulation, orderguideline, guideline order or request (whether or not having the force of law) ), or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, orderguideline, guideline order or request, request (such as, for example, but not limited to to, (A) a change in the basis of taxation of or payment to any Bank of the principal of or interest on the such Eurodollar Loans or any other amounts payable hereunder (except for changes in the rate of with respect to any tax imposed on, or determined by reference to, the net income or net profits of such Bank, Bank pursuant to the laws of the jurisdiction in which it such Bank is organized organized, or in which its such Bank's principal office or applicable lending office is located or any subdivision thereof or therein) therein or Taxes for which the Borrower are responsible under Section 4.04), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate) and/or (y) other circumstances since the date of this Agreement affecting such Bank, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such market; or
(iii) at any timetime since the date of this Agreement, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) become unlawful by compliance by such Bank with any law or law, governmental rule, regulation regulation, guideline or order, order (y) impossible by compliance by any Bank in good faith or would conflict with any governmental rule, regulation, guideline, request (whether or order not having the force of law) law but with which such Bank customarily complies even though the failure to comply therewith would not be unlawful), or (z) has become impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any ;
(a) upon the subsequent receipt of such event, such Bank (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur. Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers accordance with respect to any affected Fixed Rate Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded, (y) in the case of clause (ii) above, the respective Borrowers shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers by such Bank shall, absent manifest error, be final and conclusive and binding on all the parties heretoSection 1.10(d)) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and and, in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in pursuant to Section 1.10(a)(iii) ), the Borrower shall) either (xi) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversionBorrowing, cancel the respective said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that such the Borrower was notified by the affected a Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) )), or (yii) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert each such Fixed Rate Eurodollar Loan into a Base Rate Loan; provided, provided that, that if more than one Bank is affected at any time, then all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time Bank shall have determined that after the date hereof, the adoption or effectiveness of this Agreement any Bank determines that the introduction of or any change in any applicable law law, rule or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agencyagency charged with the interpretation or administration thereof, will have the effect of increasing the amount of capital required or expected to be maintained compliance by such Bank or any corporation controlling such Bank based with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the existence such Bank's or such other corporation's capital or assets as a consequence of such Bank's portion of the Total Commitment or Commitments hereunder or its obligations hereunderhereunder to a level below that which such Bank or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Bank's or such other corporation's policies with respect to capital adequacy), then from time to time, upon written demand by such Bank (with a copy to the Borrowers Agent), accompanied by the notice referred to in the last sentence of this clause (c), the Borrower shall pay to such Bank, promptly upon its written demand therefor, Bank such additional amount or amounts as shall be required to will compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank or such other corporation as a result of such increase of capitalreduction. In determining such additional amounts, each Bank will act reasonably and in good faith and will use reasonable averaging and attribution methods methods. Each Bank, upon determining in good faith that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which are reasonableshall be sent by such Bank to the Agent), provided that which notice shall set forth the basis of the calculation of such additional amounts, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice, except in accordance with Section 1.10(d) . A Bank's reasonable good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each .
(d) Promptly after any Bank, upon determining Letter of Credit Issuer or Participant has determined, in its judgment, that any additional amounts it will be payable make a request for increased compensation pursuant to this Section 1.10(c)1.10 or Section 2.05, such Bank, Letter of Credit Issuer or Participant will give prompt written notice thereof notify the Borrower thereof. Failure on the part of any Bank, Letter of Credit Issuer or Participant so to notify the Borrower or to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any period shall not constitute a waiver of such Bank's, Letter of Credit Issuer's or Participant's right to demand compensation with respect to such period or any other period; provided that the Borrower shall not be under any obligation to compensate any Bank, Letter of Credit Issuer or Participant under Section 1.10(a)(ii) or (c) or Section 2.05 with respect to increased costs or reductions with respect to any period prior to the affected Borrowersdate that is 90 days prior to such request if such Bank, which notice shall show Letter of Credit Issuer or Participant knew or could reasonably have been expected to be aware of the basis for calculation circumstances giving rise to such increased costs or reductions and of the fact that such additional amounts, provided, howevercircumstances would in fact result in such increased costs or reduction; provided further, that failure to give any such notice the foregoing limitation shall not release apply to any increased costs or diminish any obligation reduction arising out of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt retroactive application of any law, regulation, rule, guideline or directive as aforesaid within such notice90-day period.
Appears in 1 contract
Samples: Credit Agreement (Pine Holdings Inc)
Increased Costs, Illegality, etc. (a) In the event that any Bank shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agentparties):
(i) on any date for determining the Eurodollar Rate for any Interest Determination Date thatPeriod, that by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan because by reason of (xA) any change since the date of this Agreement in any applicable law or governmental rule, regulation, order, guideline or request order (whether or not having the force of law) or in the any official interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to (Aorder) a change in the basis of taxation of payment to any Bank of the principal of or interest on the Loans or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or and/or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation case of the LIBOR or IBOR and/or (y) Eurodollar Rate Loans, other circumstances since the date of this Agreement affecting such Bank, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such marketmarket (such as, for example but not limited to, a change in official reserve requirements, but excluding reserve requirements which have been included in calculating the Eurodollar Rate for a given Interest Period specified in the definition of "Eurodollar Rate") or otherwise as to any Loan such Bank shall be subject to any tax, duty or other charge with respect to its Loans or there shall have been a change in the basis of taxation of payments to such Bank (or its applicable lending office) of the principal of or interest on its Loans or any other amounts due under this Agreement in respect of its Loans (except for changes in the rate of tax on the overall net income of such Bank or its applicable lending office imposed by the jurisdiction in which such Bank's principal executive office or lending office is located) such that the Eurodollar Rate shall not represent the effective cost to such Bank for funding or maintaining the affected Eurodollar Rate Loan; or
(iii) at any time, that the making or continuance of any Fixed Eurodollar Rate Loan has been made (x) become unlawful by any law or governmental rule, regulation or order, (y) impossible by as a result of compliance by any such Bank in good faith with any law, governmental request (whether rule, regulation, guideline or not having force of law) order, or (z) has become impracticable as a result of a contingency occurring after the date of this Agreement Agreement; or
(iv) any reserve, deposit or similar requirement is or shall be applicable, imposed or modified in respect of any Loans or commitments to make Loans (but excluding reserve requirements which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar markethave been included in calculating any interest rate with respect thereto); then, then and in any such event, such Bank (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected appropriate Borrower or Borrowers and, except in the case of clause (i) above, and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur). Thereafter (xA) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers with respect to any affected Fixed Rate Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded, (y) in the case of clause clauses (ii) aboveand (iv), the respective Borrowers each Borrower shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to cause such Bank to receive interest with respect to its affected Loans at a rate per annum which shall be an amount equal to the applicable interest rate plus the Borrowing Margin then in effect, if any, with respect to such Loans plus such additional amounts as will compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as the effective cost to the additional amounts owed Bank to make or maintain such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers by such Bank shall, absent manifest error, be final and conclusive and binding on all the parties hereto) Loans and (zB) in the case of clause (iii) above, the respective Borrowers shall take one of the actions specified in Section 1.10(b2.9(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed of its Eurodollar Rate Loan is Loans are affected by any of the circumstances described in Section 1.10(a)(ii2.9(a)(i) or (iii), Section 2.9(a)(iii) the respective relevant Borrower may (and in the case of a Fixed Eurodollar Rate Loan affected by the circumstances described in pursuant to Section 1.10(a)(iii2.9(a)(i) or Section 2.9(a)(iii) shall) either ):
(xi) if the affected Fixed Eurodollar Rate Loan is then being Loans are yet to be made initially or pursuant to a conversionNotice of Borrowing, cancel either:
(A) withdraw the respective related Notice of Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) notice thereof on the same date that such Borrower was notified by the affected any Bank or the Administrative Agent pursuant to Section 1.10(a)(ii2.9(a) or hereof, or
(iiiB) or borrow such Borrowing as a Prime Rate Loan; and
(yii) if the affected Fixed Eurodollar Rate Loan is or Loans are then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert such Fixed reborrow each Eurodollar Rate Loan into so affected on the next following Interim Maturity Date as a Base Prime Rate Loan, Loan or Prime Rate Loans; provided that, that if more than one Bank is affected at any time, then all affected Banks must be treated the same pursuant to this Section 1.10(b2.9(b). Until the Agent notifies such Borrower that the circumstances described in Section 2.9(a)(i) or Section 2.9(a)(iii) no longer exist, the obligations of the Banks to make Eurodollar Rate Loans, as the case may be, shall be suspended, but, subject to the other terms and conditions of this Agreement, the Banks' obligations to make Prime Rate Loans shall not be suspended.
(c) If at Promptly after giving any time after the date of this Agreement notice to any Borrower pursuant to Section 2.9(a), any Bank determines giving such notice will use its best efforts to designate one of its offices located at an address other than that set forth in Section 9.3 as the office from which its Pro Rata Share of any Borrowing will be made after such designation if such designation will avoid the need for, or reduce the amount of, any payment to which such Bank would otherwise be entitled pursuant to Section 2.9(a) and will not, in the sole discretion of such Bank, be otherwise disadvantageous to such Bank or contrary to its internal policies.
(d) Without limiting the foregoing, in the event that any Bank (an "Affected Bank") shall have determined that the introduction adoption of or any change in any applicable law law, treaty, or governmental (or quasigovernmental) rule, regulation, orderguideline or order regarding capital adequacy, guidelineor any change therein or in the interpretation or application thereof, or compliance by any Bank with any request or directive or request regarding capital adequacy (whether or not having the force of lawlaw and whether or not failure to comply therewith would be unlawful) concerning capital adequacy, or from any change in interpretation or administration thereof by any governmental authority, central bank or comparable agencygovernmental agency or body having jurisdiction (a "Change in Law"), will does or shall have the effect of increasing the amount of capital required or expected to be maintained by such Bank or any corporation controlling such Bank based reducing the rate of return on the existence of such Bank's portion capital as a consequence of the Total Commitment or its obligations hereunderhereunder to a level below that which such Bank could have achieved but for such adoption, change or compliance (taking into consideration such Bank's policies with respect to capital adequacy), then the Borrowers each Borrower shall from time to time, within five (5) Business Days after written notice and demand from such Bank, pay to such Bank, promptly upon its written demand therefor, such additional amounts as shall be required sufficient to compensate such Bank for the cost of such additional required capital to the extent not otherwise reflected in the calculation of the Prime Rate and Eurodollar Rate, as applicable, or such other corporation additional amount or amounts as will compensate such Bank for the such reduced rate of return, provided, however, that if:
(i) a Bank has advance knowledge of a Change in Law,
(ii) such Bank is or becomes aware that such Change in Law will result in a determination of increased cost to under this Section 2.9(d), and
(iii) the amount of such increased cost is determinable in advance, then such Bank shall use reasonable efforts to provide at least thirty (30) days (or such other corporation or the reduction in the rate shorter period when each of return to such Bank or such other corporation as a result of such increase of capital. In determining (i), (ii) and (iii) above are true) advance notice and demand for such additional amounts. A certificate as to the amount of such cost, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that submitted to such Borrower by such Bank's determination of compensation owing under this Section 1.10(c) , shall, absent manifest error, be final and final, conclusive and binding on for all purposes.
(e) In the parties hereto. Each Bankevent any Borrower shall be required to pay any increased cost to any Bank or any Participant thereof pursuant to the foregoing provisions of this Section 2.9, such Borrower shall be entitled, by so notifying the Agent and such Bank within thirty (30) days after such Bank notifies such Borrower of any such increased cost, to arrange for the substitution of another lender (which shall be an Eligible Assignee) for such Bank within sixty (60) days thereafter pursuant to the relevant provisions of Section 9.8(c), whereupon, upon determining that the effectiveness of such substitution, the affected Loans and the Loan Commitment and Project Commitments of such Bank shall be assigned to such assignee; provided, however, that:
(i) the Bank shall be entitled to withdraw its notice of increased taxes or costs within a period of thirty (30) days from the date of notice by such Borrower, whereupon such Borrower shall no longer be entitled to substitute for the Bank as described above;
(ii) in no event shall such Borrower be entitled to substitute for any Bank unless the net present value of the additional amounts will be cost to such Borrower (including closing costs) of such substitution is less than the net present value of the additional cost (including increased taxes and costs payable pursuant to this Section 1.10(c2.9) to such Borrower of maintaining such Loans of the Bank (discounted to the time in question using the same assumed rate of interest); and
(iii) in all events (other than that described in clause (i) above), will give prompt written notice thereof to such Borrower shall remain liable for the affected Borrowers, which notice shall show the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation increased taxes and costs of the Borrowers Bank for the period prior to pay additional amounts pursuant to this Section 1.10(c) upon receipt such prepayment of such noticethe Bank's Loans or the substitution of the assignee.
Appears in 1 contract
Samples: Loan Agreement (Kmart Corp)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORLIBOR; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans such Loan or any other amounts payable hereunder (except for changes in the rate of tax onimposed on such Lender), or determined by reference to, the net income or profits but without duplication of such Bank, any amounts payable in respect of Taxes pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) Section 3.04, or (B) a change in official reserve requirements, requirements but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR and/or (y) other circumstances arising since the date of this Agreement Effective Date affecting such Bank, Lender or the London interbank Eurodollar market or the domestic interbank Eurodollar market for Dollars or the position of such Bank Lender in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or and/or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar marketfor Dollars; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone and confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate any Notice of Borrowing given by the Borrower with respect to any affected Loans and/or IBOR Rate Loanswhich have not yet been incurred shall be deemed rescinded by the Borrower and the Total Commitment shall thereafter not be available to be borrowed hereunder, and the rate of interest applicable to any affected Loans then outstanding shall be the Base Rate, as in effect from time to time, from the case may be, shall no longer be available date such notice is delivered to the Borrower and thereafter until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers with respect to any affected Fixed Rate Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees, subject to the provisions of Section 1.10 and Section 13.15 (to the extent applicable), to pay to such BankLender, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole reasonable good faith discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for and the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, and subject to Section 1.11, such Lender shall so notify the respective Borrowers Administrative Agent and the Borrower (and the Administrative Agent shall take one promptly give notice thereof to the other Lenders) and thereafter (A) except in the case of an event of the actions specified type described in Section 1.10(bclause (iii)(z) as promptly as possible above, the Commitment of such Lender shall be permanently reduced by an amount sufficient to alleviate such circumstance arising pursuant to clause (iii)(x) or (y) above, or shall be terminated in its entirety if all of such Lender’s Loans are so affected, and the Borrower shall prepay in full the affected Loans of such Lender, together with accrued interest thereon and, in the event of a termination of such Lender’s Commitment, any eventCommitment Commission which may be due to such Lender under this Agreement (and, within in the event all of such Lender’s Loans are being repaid, any other amounts which may be owing to such Lender hereunder (including, without limitation, any accrued and unpaid interest)), on either the last day of the then current Interest Period applicable to each such affected Loan (if such Lender may lawfully continue to maintain and fund such Loans) or immediately (if such Lender may not lawfully continue to maintain and fund such Loans to such day) and (B) in the case of an event of the type described in clause (iii)(z) above, the Commitment of such Lender shall be terminated in its entirety and the Borrower shall pay to such Lender any accrued and unpaid Commitment Commission which may be due to such Lender under this Agreement, and all outstanding Loans of such Lender shall, from the date such notice is delivered to the Borrower and thereafter until such time period required as the Administrative Agent or such Lender shall notify the Borrower that the circumstances giving rise to the operation of clause (iii)(z) above with respect to such Lender no longer exist, bear interest at a rate equal to the Base Rate, as in effect from time to time, it being understood that, notwithstanding anything to the contrary in this Agreement, to the extent any Loans of any Lender affected by lawcircumstances described in clause (iii)(z) above are repaid prior to receipt by the Borrower of the notice described above with respect to the elimination of such circumstances giving rise to the operation of clause (iii)(z) above with respect to such Lender, any amount of the Commitment of such Lender which may otherwise result from such repayment shall be deemed permanently reduced upon the effectiveness of such repayment. The Administrative Agent and each Lender (to the extent it continues to be a Lender hereunder) agree that if any of them gives notice to the Borrower of any of the events described in clause (i) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Lender (to the extent it continues at such time to be a Lender hereunder), the obligations of such Lender to make Loans on the terms and conditions contained herein shall, to the extent of such Lender’s outstanding Loans and Commitments as in effect at such time, be immediately reinstated.
(b) At If any time Lender in good faith determines that any Fixed Rate Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (x) if the affected Fixed Rate Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert such Fixed Rate Loan into a Base Rate Loan, provided that, if more than one Bank is affected at any time, all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Bank determines that Effective Date the introduction of or effectiveness of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, agency will have the effect of increasing the amount of capital required or expected requested to be maintained by such Bank Lender, or any corporation controlling such Bank Lender, based on the existence of such Bank's portion of the Total Commitment Lender’s Commitments hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees, subject to the provisions of Section 13.15 (to the extent applicable), to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c1.09(b) shall, absent manifest error, but subject to the provisions of Section 13.15 (to the extent applicable), be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c1.09(b), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for and calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to (A) a change in the basis of taxation of payment that shall subject any Lender to any Bank Taxes (other than (1) Indemnified Taxes exclusively covered by Section 5.04(a) and (2) Excluded Taxes) on its Loans, loan principal, Letters of the principal of Credit, Commitments or interest on the Loans or any other amounts payable hereunder (except for changes in the rate of tax onObligations, or determined by reference toits deposits, the net income reserves, other liabilities or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) capital attributable thereto or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances arising since the date of this Agreement Effective Date affecting such Bank, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees to pay to such BankLender, promptly upon its following such Lender’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the respective Borrower may (may, and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), the Borrower shall) , either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on within one Business Day of the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, provided that, that if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Effective Date the introduction or effectiveness of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Commitment Lender’s Commitments hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees to pay to such BankLender, promptly upon following its written demand therefor, therefor (together with the reasonable detail described in the last sentence of this clause (c)) such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonablereasonable and customary, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
(d) Notwithstanding anything in this Agreement to the contrary, provided(x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, howeverrules, that failure guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to give any such notice Basel III, shall in each case be deemed to be a change after the Effective Date in a requirement of law or governmental rule, regulation or order, regardless of the date enacted, adopted, issued or implemented for all purposes under or in connection with this Agreement (including this Section 2.10 and Section 3.06).
(e) Notwithstanding anything to the contrary in this Section 2.10, the Borrower shall not release or diminish any obligation of the Borrowers be required to pay additional amounts compensate a Lender pursuant to this Section 1.10(c) upon receipt 2.10 for any amounts incurred more than 180 days prior to the date that such Lender notifies the Borrower of such noticeLender’s intention to claim compensation therefor; provided that, if the circumstances giving rise to such claim have a retroactive effect, then such 180-day period shall be extended to include the period of such retroactive effect.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOR“LIBO Rate”; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate LIBOR Loan because of (x) any change since the Effective Date (or the date of this Agreement such Lender became a Lender hereunder, if later) in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank of the principal of or interest on the Loans or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR LIBO Rate, or IBOR and/or (yB) any change subjecting any Recipient to any Taxes (except for Excluded Taxes and any Indemnified Taxes) on its loans, loan principal, letters of credit, commitments, or other circumstances since the date of this Agreement affecting such Bankobligations, the London interbank Eurodollar market or the domestic interbank Eurodollar market its deposits, reserves, other liabilities or the position of such Bank in either such marketcapital attributable thereto; or
(iii) at any time, that the making or continuance of any Fixed Rate LIBOR Loan has been made (xA) unlawful by any law or governmental rule, regulation or order, (yB) impossible by compliance by any Bank Lender in good faith with any governmental request from a Governmental Authority (whether or not having force of law) or (zC) impracticable as a result of a contingency contingency, other than with respect to a tax matter not otherwise provided for in this Section 2.10, occurring after the Effective Date or since the date of this Agreement such Person becomes a Lender, if later, which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur. Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers with respect to any affected Fixed Rate Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded, (y) in the case of clause (ii) above, the respective Borrowers shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers by such Bank shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law.generally;
(b) At any time that any Fixed Rate LIBOR Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the respective Borrower may (Borrowers may, and in the case of a Fixed Rate LIBOR Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), the Borrowers shall) , either (xi) if the affected Fixed Rate LIBOR Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by the Company giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower the Company was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (yii) if the affected Fixed Rate LIBOR Loan is then outstanding, upon at least three Business Days' ’ written notice by the Company to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate LIBOR Loan into a Base Rate Loan; provided, provided that, that if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender determines that after the Effective Date (or the date of this Agreement any Bank determines that such Lender became a Lender hereunder, if later) the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Lender’s Revolving Loan Commitment hereunder or its obligations hereunder, then the Borrowers shall jointly and severally agree to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable; provided, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the affected BorrowersCompany, which notice shall show in reasonable detail the basis for calculation of such additional amounts, amounts provided, howeverfurther, that, notwithstanding anything in this Agreement to the contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III shall, in each case, be deemed to be a change after the Effective Date in a requirement of law or government rule, regulation or order, regardless of the date enacted, adopted, issued or implemented (including for purposes of this Section 2.10).
(d) It is understood that failure to give any such notice this Section 2.10 shall not release apply to Excluded Taxes or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such noticeIndemnified Taxes.
Appears in 1 contract
Samples: Abl Credit Agreement (J.Jill, Inc.)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement Effective Date affecting the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORthe Eurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change since arising after the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits or franchise taxes based on net income of such Bank, Lender pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D requirements (except to the extent included in the computation of the LIBOR Eurodollar Rate) or IBOR any special deposit, assessment or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (or its applicable lending office) and/or (y) other circumstances since the date of this Agreement Effective Date affecting such Bank, the London interbank Eurodollar market Lender or the domestic applicable interbank Eurodollar market or the position of such Bank Lender in either such market; or
(iii) at any timetime after the date of this Agreement, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or any Notice of Conversion given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower shall, subject to the provisions of Section 13.17 (to the extent applicable), pay to such BankLender, promptly upon its written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three two Business Days' written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, provided PROVIDED that, if more than one Bank Lender is affected at any timetime as described above in this clause (b), then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement Effective Date any Bank Lender determines that the introduction of or any change (which introduction or change shall have occurred after the date of this Agreement) in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such BankLender's portion of the Total Commitment hereunder or its obligations hereunder, then the Borrowers shall pay Borrower agrees to pay, subject to the provisions of Section 13.17 (to the extent applicable), to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided PROVIDED that such BankLender's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected Borrowers, which notice shall show the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.Section
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank -------------------------------- shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any the Interest Determination Date in respect of any Loan that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar marketapplicable Loan Currency, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORRate; or
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan because of (x) any change since the date of this Agreement in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction enactment of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to (A) a change in the basis of taxation of payment payments to any Bank of the principal of or interest on the Loans Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, or any franchise tax based on the net income or profits of such Bank, in either case pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) ), but without duplication of any amounts payable in respect of Taxes pursuant to Section 4.04(a); or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR covered by Section 2.09(c) and/or (y) other circumstances since the date of this Agreement affecting such Bank, Bank or the London interbank Eurodollar market or the domestic interbank Eurodollar applicable eurocurrency market or the position of such Bank in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any such Bank in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar applicable eurocurrency market; then, and in any such event, such Bank (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected applicable Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent Agent, of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occur). Thereafter (x) in the case of clause (i) above, LIBOR Rate the affected Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers such Borrower and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers such Borrower with respect to any affected Fixed Rate such Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by such Borrower, (y) in the case of clause (ii) above, the respective Borrowers such Borrower shall pay to such Bank, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received re- ceived or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the affected Borrowers applicable Borrower by such Bank shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers such Borrower shall take one of the actions specified in Section 1.10(b2.09(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Loan is affected by the circumstances described in Section 1.10(a)(ii2.09(a)(ii) or (iii), the respective applicable Borrower may (and in the case of a Fixed Rate Loan affected by the circumstances described in Section 1.10(a)(iii2.09(a)(iii) shall) either (x) if the affected Fixed Rate Loan is then being made initially or pursuant to a conversionmade, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) of such cancellation on the same date that such Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii2.09(a)(ii) or (iii) or (y) if the affected Fixed Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert prepay such Fixed Rate Loan into a Base Rate Loan, provided that, if more than one -------- Bank is affected at any timetime by the circumstances described in Section 2.09(a)(ii) or (iii), then all affected Banks must be treated in the same manner pursuant to this Section 1.10(b2.09(b).
(c) In the event that any Bank shall determine (which determination shall, absent manifest error, be final and conclusive and binding on all the parties hereto) at any time that by reason of Regulation D such Bank is required to maintain reserves in respect of Eurocurrency liabilities (as defined in Regulation D) (any such determination, for any Bank, a "Eurocurrency Reserve Event"), then such Bank shall promptly give notice (by telephone confirmed in writing) to the Borrowers and to the Agent of such determination (which notice the Agent shall promptly transmit to each of the other Banks), and the Borrowers shall directly pay to such Bank additional interest on the unpaid principal amount of such Bank's Eurocurrency Loans throughout such Eurocurrency Reserve Event at a rate per annum which shall, during each Interest Period, be the amount by which (A) the LIBOR Rate for such Interest Period divided (and rounded upward to the next whole multiple of 1/16 of 1%) by a percentage equal to 100% minus the then stated maximum rate of all reserve requirements (including, without limitation, any marginal, emergency, supplemental, special or other reserves) applicable to any member bank of the Federal Reserve System in respect of Eurocurrency liabilities (as defined in Regulation D) exceeds (B) the LIBOR Rate for such Interest Period. Additional interest payable pursuant to the immediately preceding sentence shall be paid by each Borrower at the time that it is otherwise required to pay interest in respect of such Loans or, if later demanded by the Bank, promptly on demand. Each Bank agrees that, if it gives notice to the Borrowers of the existence of a Eurocurrency Reserve Event, it shall promptly notify the Borrowers of any termination thereof, at which time the Borrowers shall cease to be obligated to pay additional interest to such Bank pursuant to the first sentence of this Section 2.09(c) until such time, if any, as a subsequent Eurocurrency Reserve Event shall occur.
(d) If at any time after the date of this Agreement any Bank determines that the introduction enactment of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change or any change therein, or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agencyagency charged with the interpretation or administration thereof, has or will have the effect of increasing the amount of capital required or expected to be maintained by such Bank or any corporation controlling such Bank based on the existence of such Bank's portion of the Total Commitment Commitments hereunder or its obligations hereunder or has or would have the effect of reducing the rate of return on such Bank's capital or assets as a consequence of such Bank's Commitments or obligations hereunder to a level below that which such Bank could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Bank's policies with respect to capital adequacy) hereunder, then the Borrowers each Borrower shall pay to such Bank, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such the Bank or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the affected Borrowers, which notice shall show the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.-------- 2.09
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement Effective Date affecting the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORthe Eurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Eurodollar Rate Loan or Competitive Bid Loan because of (x) any change arising after the Effective Date (or, in the case of a Competitive Bid Loan, since the date making of this Agreement such Competitive Bid Loan) in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the such Loans or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits or franchise taxes based on net income of such Bank, Lender pursuant to the laws of the jurisdiction country in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D requirements (except to the extent included in the computation of the LIBOR Eurodollar Rate) or IBOR any special deposit, assessment or similar requirement against assets of deposits with or for the account of, or credit extended by, any Lender (or its applicable lending office) and/or (y) other circumstances since the date Effective Date (or, in the case of this Agreement a Competitive Bid Loan, since the making of such Competitive Bid Loan) affecting such Bank, the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender and lenders generally in either such market; or
(iii) at any timetime after the date of this Agreement, that the making or continuance of any Fixed Eurodollar Rate Loan or Competitive Bid Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Eurodollar Rate Loans and/or IBOR Rate Loans, as the case may be, and Spread Competitive Bid Borrowings shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing, Notice of Competitive Bid Borrowing or any Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate such Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower shall, subject to the provisions of Section 13.17 (to the extent applicable), pay to such BankLender, promptly upon within 10 days of its written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion good faith shall reasonably determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b1.11(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Eurodollar Rate Loan or Competitive Bid Loan is affected by the circumstances described in Section 1.10(a)(ii1.11(a)(ii) or (iii), the respective Borrower may (and and, in the case of a Fixed Eurodollar Rate Loan or Competitive Bid Loan affected by the circumstances described in Section 1.10(a)(iii) 1.11(a)(iii), shall) either (x) if the affected Fixed Eurodollar Rate Loan is or Competitive Bid Loan then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank or the Administrative Agent Lender pursuant to Section 1.10(a)(ii1.11(a)(ii) or (iii) or (y) if the affected Fixed Eurodollar Rate Loan or Competitive Bid Loan is then outstanding, upon at least three two Business Days' ’ written notice to the Administrative Agent, require the affected Bank Lenders (A) in the case of a Eurodollar Rate Loan, to convert such Fixed Eurodollar Rate Loan into a Base Rate Loan and (B) in the case of a Competitive Bid Loan, to repay such Competitive Bid Loan in full, provided that, that if more than one Bank Lender is affected at any timetime as described above in this clause (b), then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b1.11(b).
(c) If at any time after the date of this Agreement Effective Date any Bank Lender determines that the introduction of or any change (which introduction or change shall have occurred after the Effective Date) in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agencyagency charged with the interpretation or administration thereof, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Lender’s Commitment hereunder or its obligations hereunder, then the Borrowers shall pay Borrower agrees to pay, subject to the provisions of Section 13.17 (to the extent applicable), to such BankLender, promptly upon within 10 days of its written demand request therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c1.11(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c1.11(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of clause (i) below, the Administrative Agent or (y) in the case of clauses (ii) and (iii) below, any Bank Lender, shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agenthereto):
(i) on any Interest Determination Date Date, that, by reason of any changes arising after the date of this Agreement Effective Date affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan Eurodollar Loans because of (x) any change since the date of this Agreement in any applicable law or law, governmental rule, regulation, orderguideline, guideline order or request (whether or not having the force of law) ), or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, orderguideline, guideline order or request, such as, for example, but not limited to to, (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the such Eurodollar Loans or any other amounts payable hereunder (except for changes in the rate of with respect to any tax imposed on, NEWYORK 9228865 (2K) -55- measured by or determined by reference to, the net income or income, net profits of such Bank, Lender or any franchise tax imposed in lieu thereof pursuant to the laws of the jurisdiction in which it such Lender is organized organized, or in which its such Lender’s principal office or applicable lending office is located or any subdivision thereof or therein); provided, however, that the Borrower’s obligations to pay any additional amounts claimed under this Section 2.10(a)(ii)(x)(A) shall be subject to the provisions contained in Section 5.04(c); provided further that taxes that are otherwise addressed by Section 5.04 are not subject to a claim under this Section 2.10 or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances arising since the date of this Agreement affecting such BankLender, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such marketmarket (whether or not such Lender was a Lender at the time of such occurrence, but subject to the last sentence of Section 13.07(j)); or
(iii) at any timetime since the Effective Date, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) become unlawful by compliance by such Lender with any law or law, governmental rule, regulation regulation, guideline or order, order (y) impossible by compliance by any Bank in good faith or would conflict with any governmental rule, regulation, guideline, request (whether or order not having the force of law) law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawful), or (z) has become impracticable as a result of a change or contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, Agent in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower Borrower, which written notice shall set forth such Lender’s (or Borrowers andthe Administrative Agent’s, as the case may be) basis for asserting its rights under this Section 2.10(a) and the calculation, in reasonable detail, of any such additional amounts claimed hereunder, and (except in the case of clause (i)) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter Thereafter, (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees, subject to the provisions of Section 13.18 (to the extent applicable), to pay to such BankLender, promptly upon its written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder but without duplication of any payments due under Section 5.04 (a with the written notice as to the additional amounts amounts, which shall set forth in reasonable detail the basis and calculation thereof, owed to such Bank, showing the basis for the calculation thereofLender, submitted to the affected Borrowers Borrower by such Bank shallLender in accordance with the foregoing to be, absent manifest error, be final and final, conclusive and binding on upon all the parties hereto, although the failure to give any such notice shall not release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 2.10(a) upon the subsequent receipt of such notice) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii2.10(a)(ii) or (iii), the respective Borrower may at its sole option (and in the case of a Fixed Rate Eurodollar Loan affected by pursuant to Section 2.10(a)(iii), the circumstances described in Section 1.10(a)(iii) Borrower shall) either (xi) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversionBorrowing, cancel the respective said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that such the Borrower was notified by the affected Bank or the Administrative Agent a Lender pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) )), or (yii) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' written ’ notice to the Administrative Agent, require the affected Bank Lender to convert each such Fixed Rate Eurodollar Loan into a Base Rate LoanLoan (which conversion, in the case of the circumstance described in Section 2.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that, that if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender shall have determined after the date of this Agreement any Bank determines Effective Date that the introduction adoption or effectiveness after the Effective Date of or any change in any applicable law law, rule or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning regulation regarding capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agencyagency charged with the interpretation or administration thereof, will have the effect of increasing the amount of capital required or expected to be maintained compliance by such Bank Lender or any corporation controlling such Bank based Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the existence such Lender’s or such other corporation’s capital or assets as a consequence of such Bank's portion of the Total Lender’s Commitment or Commitments hereunder or its obligations hereunderhereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender’s or such other corporation’s policies with respect to capital adequacy), then from time to time, upon written demand by such Lender (with a copy to the Borrowers shall Administrative Agent), accompanied by the notice referred to in the last sentence of this Section 2.10(c), the Borrower agrees, subject to the provisions of Section 13.18 (to the extent applicable), to pay to such Bank, promptly upon its written demand therefor, Lender such additional amount or amounts as shall be required to will compensate such Bank Lender or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capitalcorporation. In Each Lender, upon determining such additional amounts, each Bank will act reasonably and in good faith that any additional amounts will be payable pursuant to this Section 2.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender’s basis for asserting its rights under this Section 2.10(c) and will use averaging and attribution methods which are reasonablethe calculation, provided that in reasonable detail, of such Bank's additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower’s obligations to pay additional amounts pursuant to this Section 2.10(c) upon the subsequent receipt of such notice. A Lender’s reasonable good faith determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank.
(d) Notwithstanding anything in this Agreement to the contrary, upon determining that any additional amounts will the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation NEWYORK 9228865 (2K) -57- thereof, shall be payable pursuant deemed to be a change after the Effective Date in a requirement of law or government rule, regulation or order, regardless of the date enacted, adopted, issued or implemented (including for purposes of this Section 1.10(c2.10 and Section 3.05), will give prompt written notice thereof to the affected Borrowers, which notice shall show the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 1 contract
Samples: Credit Agreement (EnerSys)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest demonstrable error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic Canadian interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of “LIBOR Rate” or IBOR; or“Canadian B/A Rate”;
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed LIBOR Rate Loan or B/A Equivalent Loan because of (x) any change since the date of this Agreement Closing Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the official interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, official guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank of the principal of Tax imposed on any Lender (except Indemnified Taxes or interest on the Loans Other Taxes indemnified under Section 5.01 or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or thereinExcluded Taxes) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR Rate or IBOR and/or (y) other circumstances since the date of this Agreement affecting such BankCanadian B/A Rate, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank in either such marketas applicable; or
(iii) at any time, that the making or continuance of any Fixed LIBOR Rate Loan or B/A Equivalent Loans has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Closing Date which materially and adversely affects the London interbank Eurodollar market or the domestic Canadian interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) writing to the affected Borrower or Borrowers Company and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR Rate Loans, as the case may be, or B/A Equivalent Loans shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Relevant Borrower with respect to any affected Fixed LIBOR Rate Loans or B/A Equivalent Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the applicable Borrowers, (y) in the case of clause (ii) above, the respective Borrowers shall pay each U.S. Borrower, jointly and severally, agrees to pay, and each Canadian Borrower and U.K. Borrower, if any, jointly and severally, agrees to pay, as applicable, to such BankLender, promptly upon its such Lender’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to setting forth the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, shall be submitted to the affected Borrowers Company by such Bank Lender and shall, absent manifest demonstrable error, be final and conclusive and binding on all the parties hereto) and ), (z) in the case of clause (iii) above, the respective Borrowers shall take one of the actions specified in Section 1.10(b3.01(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed LIBOR Rate Loan or B/A Equivalent Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii3.01(a)(ii), the respective Relevant Borrower may (may, and in the case of a Fixed LIBOR Rate Loan or a B/A Equivalent Loan affected by the circumstances described in Section 1.10(a)(iii) shall) 3.01(a)(iii), the Relevant Borrower shall either (x) if the affected Fixed LIBOR Rate Loan or B/A Equivalent Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic written notice (confirmed in writing) on the same date that such the Relevant Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii3.01(a)(ii) or (iii) or (y) if the affected Fixed LIBOR Rate Loan or B/A Equivalent Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed LIBOR Rate Loan into a U.S. Base Rate Loan, or such B/A Equivalent Loan into a Canadian Prime Loan at the end of the applicable Interest Period or Contract Period, or such earlier date as may be required by applicable law, provided that, that if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b3.01(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Closing Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacyadequacy or liquidity, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital or liquidity required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Commitment Lender’s Commitments hereunder or its obligations hereunder, then then, in the Borrowers shall case of a U.S. Lender, each U.S. Borrower, jointly and severally, and, in the case of U.S. and Canadian Lenders, each Canadian Borrower and U.K. Borrower, if any, jointly and severally, agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capitalcapital or liquidity. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c3.01(c) shall, absent manifest demonstrable error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c3.01(c), will give prompt written notice thereof to the affected BorrowersCompany, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
(d) Notwithstanding anything in this Agreement to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III ((x) and (y) collectively referred to as “Xxxx-Xxxxx and Basel III”), shall be deemed to be a change after the Closing Date in a Requirement of Law or government rule, regulation or order, regardless of the date enacted, adopted, issued or implemented (including for purposes of this Section 3.01).
(e) Notwithstanding anything in this Agreement to the contrary, the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section (i) for any increased costs incurred or reductions suffered more than 90 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of such Lender’s or Issuing Bank’s intention to claim compensation under this Section 3.01; provided, however, that failure that, if the introduction or change referred to give any in Section 3.01(a)(ii) or 3.01(c) giving rise to such notice increased costs or reductions is retroactive, then the 90-day period referred to above shall be extended to include the period of retroactive effect thereof; or (ii) such Lender or Issuing Banks is not release charging such costs or diminish any obligation of reduced return to its borrowers generally with respect to which it has the Borrowers right to pay additional amounts pursuant to this Section 1.10(c) upon receipt of charge such noticecosts.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBOREurodollar Rate; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Eurodollar Loan because of (x) any change since the date of this Agreement Original Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income or profits of such Bank, Lender pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances arising since the date of this Agreement Original Effective Date affecting such BankLender, the London interbank Eurodollar market or the domestic interbank Eurodollar market or the position of such Bank Lender in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement Original Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar market; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate Eurodollar Loans and/or IBOR Rate Loans, as the case may be, shall no longer be available until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by the Borrower, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower shall, subject to Section 2.14, pay to such BankLender, promptly upon its such Lender's written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrowers Borrower shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Fixed Rate Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii2.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii2.10(a)(iii) shall) either (x) if the affected Fixed Rate Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such the Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Eurodollar Loan is then outstanding, upon at least three Business Days' Days written notice to the Administrative Agent, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan, provided that, if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Original Effective Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such BankLender's portion of the Total Commitment Commitments hereunder or its obligations hereunder, then the Borrowers shall Borrower shall, subject to Section 2.14, pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such BankLender's determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 1 contract
Samples: Credit Agreement (Infousa Inc)
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORLIBOR; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Rate Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payment to any Bank Lender of the principal of or interest on the Loans such Loan or any other amounts payable hereunder (except for changes in the rate of tax on, or determined by reference to, the net income income, gross receipts or net profits of such BankLender, or any franchise tax based on net income, net profits or net worth of such Lender, in each case pursuant to the laws of the jurisdiction in which it such Lender is organized or in which its such Lender’s principal office or applicable lending office is located or any subdivision thereof or therein) ), but without duplication of any amounts payable in respect of Taxes pursuant to Section 4.04, or (B) a change in official reserve requirements, requirements but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR and/or (y) other circumstances arising since the date of this Agreement Effective Date affecting such Bank, Lender or the London interbank Eurodollar market or the domestic interbank Eurodollar market for Dollars or the position of such Bank Lender in either such market; or
(iii) at any time, that the making or continuance of any Fixed Rate Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or and/or (z) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar market or the domestic interbank Eurodollar marketfor Dollars; then, and in any such event, such Bank Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (x) in the case of clause (i) above, LIBOR Rate any Notice of Borrowing given by the Borrower with respect to any affected Loans and/or IBOR Rate Loanswhich have not yet been incurred shall be deemed rescinded by the Borrower and the Total Commitment shall thereafter not be available to be borrowed hereunder, and the rate of interest applicable to any affected Loans then outstanding shall be the Base Rate, as in effect from time to time, from the case may be, shall no longer be available date such notice is delivered to the Borrower and thereafter until such time as the Administrative Agent notifies the Borrowers Borrower and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by any of the Borrowers with respect to any affected Fixed Rate Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded, (y) in the case of clause (ii) above, the respective Borrowers shall Borrower agrees, subject to the provisions of Section 1.11 and Section 15.15 (to the extent applicable), to pay to such BankLender, promptly upon its written demand therefor, therefore such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole reasonable good faith discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for and the calculation thereof, submitted to the affected Borrowers Borrower by such Bank Lender in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, and subject to Section 1.11, such Lender shall so notify the respective Borrowers Administrative Agent and the Borrower (and the Administrative Agent shall take one promptly give notice thereof to the other Lenders) and thereafter (A) except in the case of an event of the actions specified type described in Section 1.10(bclause (iii)(z) as promptly as possible above, the Commitment of such Lender shall be permanently reduced by an amount sufficient to alleviate such circumstance arising pursuant to clause (iii)(x) or (y) above, or shall be terminated in its entirety if all of such Lender’s Loans are so affected, and the Borrower shall prepay in full the affected Loans of such Lender, together with accrued interest thereon and, in the event of a termination of such Lender’s Commitment, any eventCommitment Commission which may be due to such Lender under this Agreement (and, within in the event all of such Lender’s Loans are being repaid, any other amounts which may be owing to such Lender hereunder (including, without limitation, any accrued and unpaid interest)), on either the last day of the then current Interest Period applicable to each such affected Loan (if such Lender may lawfully continue to maintain and fund such Loans) or immediately (if such Lender may not lawfully continue to maintain and fund such Loans to such day) and (B) in the case of an event of the type described in clause (iii)(z) above, the Commitment of such Lender shall be terminated in its entirety and the Borrower shall pay to such Lender any accrued and unpaid Commitment Commission which may be due to such Lender under this Agreement, and all outstanding Loans of such Lender shall, from the date such notice is delivered to the Borrower and thereafter until such time period required by lawas the Administrative Agent or such Lender shall notify the Borrower that the circumstances giving rise to the operation of clause (iii)(z) above with respect to such Lender no longer exist. The Administrative Agent and each Lender (to the extent it continues to be a Lender hereunder) agree that if any of them gives notice to the Borrower of any of the events described in clause (i) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Lender (to the extent it continues at such time to be a Lender hereunder), the obligations of such Lender to make Loans on the terms and conditions contained herein shall to the extent of such Lender’s outstanding Loans and Commitments as in effect at such time, be immediately reinstated.
(b) At If any time Lender in good faith determines that any Fixed Rate Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower may (and in the case of a Fixed Rate Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (x) if the affected Fixed Rate Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Fixed Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Bank to convert such Fixed Rate Loan into a Base Rate Loan, provided that, if more than one Bank is affected at any time, all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Bank determines that Effective Date the introduction of or effectiveness of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, agency will have the effect of increasing the amount of capital required or expected requested to be maintained by such Bank Lender, or any corporation controlling such Bank Lender, based on the existence of such Bank's portion of the Total Commitment Lender’s Commitments hereunder or its obligations hereunder, then the Borrowers shall Borrower agrees, subject to the provisions of Section 15.15 (to the extent applicable), to pay to such BankLender, promptly upon its written demand therefortherefore, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that providedthat such Bank's Lender’s determination of compensation owing under this Section 1.10(c1.09(b) shall, absent manifest error, but subject to the provisions of Section 15.15 (to the extent applicable), be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c1.09(b), will give prompt written notice thereof to the affected BorrowersBorrower, which notice shall show in reasonable detail the basis for and calculation of such additional amounts, provided, however, that failure to give any such notice shall not release or diminish any obligation of the Borrowers to pay additional amounts pursuant to this Section 1.10(c) upon receipt of such notice.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Bank Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause clauses (ii)(x) and (iv) below, may be made only by the Administrative Agent):
(i) (x) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the London applicable interbank Eurodollar market or the domestic interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR or IBORthe respective Euro Rate and/or (y) the applicable Euro Rate for any requested Interest Period with respect to a proposed Euro Rate Loan does not adequately and fairly reflect the cost to the Lenders of funding such Euro Rate Loan; or
(ii) at any time, that such Bank Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Fixed Euro Rate Loan because of (x) any change since the date of this Agreement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A1) a change in the basis of taxation of payment payments to any Bank Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for changes in the basis of taxation or rate of tax on, or determined by reference to, the net income or net profits of such Bank, Lender pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (B2) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBOR or IBOR Eurodollar Rate and/or (y) other circumstances arising since the date of this Agreement Effective Date affecting such BankLender, the London interbank Eurodollar market or the domestic interbank Eurodollar eurodollar market or the position of such Bank Lender in either such market; or
(iii) at any time, that the making or continuance of any Fixed Euro Rate Loan has been made (xA) unlawful by any law or governmental rule, regulation or order, (yB) impossible by compliance by any Bank Lender in good faith with any governmental request (whether or not having force of law) or (zC) impracticable as a result of a contingency occurring after the date of this Agreement Effective Date which materially and adversely affects the London interbank Eurodollar applicable eurodollar market; or
(iv) at any time that there is no market for Bankers’ Acceptances by reason of circumstances affecting the Canadian money market generally or the domestic interbank Eurodollar marketrelevant Available Currency (other than U.S. Dollars) is not available in sufficient amounts, in either case as determined in good faith by the Administrative Agent, acting reasonably; then, and in any such event, such Bank Lender (or (I) the Administrative Agent, in the case of clauses (i)(x) and (iv) above or (II) the Required Lenders, in the case of clause (ii)(y) above) shall promptly give notice (by telephone promptly confirmed in writing) to the affected Borrower or Borrowers and, except in the case of clause clauses (ii)(x) and (iv) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks) not later than 11:00 A.M. (New York time) on the date such Borrowing was to occurLenders). Thereafter (xw) in the case of clause (i) above, LIBOR Rate (A) in the event that Eurodollar Loans and/or IBOR Rate Loansare so affected, as the case may be, Eurodollar Loans shall no longer be available until such time as the Administrative Agent (on behalf of the Required Lenders in the case of clause (i)(y) above) notifies the Borrowers Holdings and the Banks Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion Conversion/Continuation given by any of the Borrowers Borrower with respect to any affected Fixed Rate Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescindedrescinded by such Borrower, (yB) in the event that Sterling Denominated Revolving Loans are so affected, the applicable Euro Rate shall be determined on the basis provided in the proviso to the definition of Sterling Rate, (C) in the event that Euro Denominated Revolving Loans are so affected, the applicable Euro Rate shall be determined on the basis provided in the proviso to the definition of Euro LIBOR and (D) in the event that Australian Dollar Denominated Revolving Loans are so affected, the applicable Euro Rate shall be determined on the basis provided in the proviso to the definition of Australian Dollar Rate, (x) in the case of clause (ii) above, the respective U.S. Borrowers shall (jointly and severally), the Australian Borrowers (jointly and severally), the Canadian Borrowers (jointly and severally), the Dutch Borrowers (jointly and severally) and/or the U.K. Borrowers (jointly and severally) agree to pay to such BankLender, promptly upon its such Lender’s written demand request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank Lender in its sole discretion shall determine) as shall be required to compensate such Bank Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such BankLender, showing in reasonable detail the basis for the calculation thereof, submitted to the affected respective Borrowers by such Bank Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto); provided, however, that for purposes of clause (ii) and above, any such Borrower shall not be obligated to pay such additional amounts which relate to Taxes (zas to which Section 5.04 shall govern), (y) in the case of clause (iii) above, the respective Borrower or Borrowers shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by lawlaw and (z) in the case of clause (iv) above, and as provided in Schedule 1.01(b), Bankers’ Acceptance Loans or other Revolving Loans in the relevant Available Currency (exclusive of any such Revolving Loans which have theretofore been funded) shall no longer be available until such time as the Administrative Agent notifies the affected Borrowers and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation with respect to Bankers’ Acceptance Loans or such other Revolving Loans given by the respective Borrowers which have not been incurred (including by way of conversion) shall be deemed rescinded by such Borrowers.
(b) At any time that any Fixed Euro Rate Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the respective affected Borrower may (may, and in the case of a Fixed Euro Rate Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), the affected Borrower shall) , either (xi) if the affected Fixed Euro Rate Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Bank Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) ), or (yii) if the affected Fixed Euro Rate Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, (A) in the case of a Eurodollar Loan, require the affected Bank Lender to convert such Fixed Rate Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the circumstance described in Section 2.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law) and (B) in the case of any Euro Rate Loan (other than a Eurodollar Loan), repay all outstanding Borrowings which include such affected Euro Rate Loans in full in accordance with the applicable requirements of Section 5.01; provided that (i) if the circumstances described in Section 2.10(a)(iii) apply to any Australian Dollar Denominated Revolving Loans, Sterling Denominated Revolving Loan or Euro Denominated Revolving Loan, the respective Borrower may, in lieu of taking the actions described above, maintain such outstanding Australian Dollar Denominated Revolving Loans, Sterling Denominated Revolving Loan or Euro Denominated Revolving Loan, as the case may be, in which case, (x) in the case of Sterling Denominated Revolving Loans, the applicable Euro Rate shall be determined on the basis provided thatin the proviso to the definition of Sterling Rate, (y) in the case of Euro Denominated Revolving Loans, the applicable Euro Rate shall be determined on the basis provided in the proviso to the definition of Euro LIBOR and (z) in the case of Australian Dollar Denominated Revolving Loans, the applicable Euro Rate shall be determined on the basis provided in the proviso to the definition of Australian Dollar Rate, as the case may be, unless the maintenance of such outstanding Australian Dollar Denominated Revolving Loans, Sterling Denominated Revolving Loan or Euro Denominated Revolving Loan, as the case may be, on such basis would not stop the conditions described in Section 2.10(a)(iii) from existing (in which case the actions described above, without giving effect to this proviso, shall be required to be taken) and (ii) if more than one Bank Lender is affected at any time, then all affected Banks Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any time Lender determines that after the date of this Agreement any Bank determines that Effective Date the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy, or any change in interpretation or administration thereof by the NAIC or any governmental authorityGovernmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Bank Lender or any corporation controlling such Bank Lender based on the existence of such Bank's portion of the Total Lender’s Commitment hereunder or its obligations hereunder, then the Borrowers shall Holdings agrees to pay to such BankLender, promptly upon its written demand therefor, such additional amounts as shall be required to compensate such Bank Lender or such other corporation for the increased cost to such Bank Lender or such other corporation or the reduction in the rate of return to such Bank Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Bank Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, ; provided that such Bank's Lender’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each BankLender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the affected BorrowersHoldings, which notice shall show in reasonable detail the basis for calculation of such additional amounts, provided, however, that although the failure to give any such notice shall not release or diminish any obligation of the Borrowers Holdings’ obligations to pay additional amounts pursuant to this Section 1.10(c2.10(c) upon the subsequent receipt of such notice. For the avoidance of doubt, nothing in this Section 2.10(c) shall require Holdings to pay to any Lender any amount for which such Lender is compensated by way of payment of Mandatory Costs.
(d) In the event that any Lender shall in good faith determine (which determination shall, absent manifest error, be final and conclusive and binding on all parties hereto) at any time that such Lender is required to maintain reserves (including, without limitation, any marginal, emergency, supplemental, special or other reserves required by applicable law) which have been established by any Federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body with jurisdiction over such Lender (including any branch, Affiliate or funding office thereof) in respect of any Australian Dollar Denominated Revolving Loans, Sterling Denominated Revolving Loans or Euro Denominated Revolving Loans or any category of liabilities which includes deposits by reference to which the interest rate on any Sterling Denominated Revolving Loan or Euro Denominated Revolving Loan is determined or any category of extensions of credit or other assets which includes loans by a non-United States office of any Lender to non-United States residents, then, unless such reserves are included in the calculation of the interest rate applicable to such Australian Dollar Denominated Revolving Loans, Sterling Denominated Revolving Loans or Euro Denominated Revolving Loans or in Section 2.10(a)(ii), such Lender shall promptly notify the Borrowers in writing specifying the additional amounts required to indemnify such Lender against the cost of maintaining such reserves in respect of such Australian Dollar Denominated Revolving Loans, Sterling Denominated Revolving Loans and/or Euro Denominated Revolving Loans (such written notice to provide in reasonable detail a computation of such additional amounts) and the respective Borrowers shall be jointly and severally obligated to pay to such Lender such specified amounts as additional interest at the time that such Borrowers are otherwise required to pay interest in respect of such Australian Dollar Denominated Revolving Loans, Sterling Denominated Revolving Loans and Euro Denominated Revolving Loans or, if later, on written demand therefor by such Lender.
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