Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto): (i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; or (ii) at any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (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) or (2) other circumstances adversely affecting the availability of Term SOFR; or (iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of SOFR; then, and in each such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give notice (by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing Banks). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(ii) above, the Borrower shall pay to such Lender or Issuing Bank, upon 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 Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law. (b) At any time that any SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b). (c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporation’s capital or assets as a consequence of such Xxxxxx’s commitments or obligations hereunder to 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 and liquidity), then from time to time, within 15 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, in reasonable detail, the basis of the calculation of such additional amounts, which basis must be reasonable, 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 5.01(c) upon the subsequent receipt of such notice. (d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event. (e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Diversified Energy Co PLC), Revolving Credit Agreement (Diversified Energy Co PLC)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; or
(ii) at any time, after the later of the Restatement Date and the date such entity became a Lender hereunder, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to the Loans, including as a result of any SOFR Loans Tax (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (Ax) Indemnified Taxes, (By) Taxes described in clauses (b) through (de) of the definition of “Excluded Taxes and Taxes” or (Cz) Connection Income Taxes) because of (1) any Change in Law change since the Closing Restatement Date in any Applicable Law (includingor in the interpretation or administration thereof and including the introduction of any new Applicable Law), but not limited tosuch as, for example, without limitation, a change in requirements for any reserve, special deposit, liquidity or similar official reserve requirements (including any compulsory loan requirementbut excluding changes in the rate of tax on the overall net income of such Lender), insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender or Issuing Bank) or (2) other circumstances adversely affecting the availability of Term SOFR; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of SOFR; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) aboveThereafter, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon within ten (10) Business Days after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law).
(b) At any time that any SOFR Loan is affected by If, after the circumstances described in Section 5.01(a)(ii) or (iii)later of the Restatement Date and the date such entity becomes a Lender hereunder, the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case adoption of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Applicable Law regarding capital adequacy adequacy, or liquidity any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such a Lender or its parent corporation with any request or directive made or adopted after such date regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, association, central bank, bank or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to 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 corporationparent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 ten (10) days after receipt of written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the Restatement Date. Each LenderLender (on its own behalf), upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(b), will will, as promptly as practicable upon ascertaining knowledge thereof, give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts. Without limiting Section 2.10(d) below, which basis must be reasonable, although the failure to give any such notice with respect to a particular event shall not release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(b) upon for amounts accrued or incurred after the subsequent receipt date of such noticenotice with respect to such event. Notwithstanding anything herein to the contrary, (x) the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act and all rules, regulations, orders, requests, guidelines or directives 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 or foreign regulatory authorities, in each case pursuant to Basel III, in each case, are deemed to have been adopted and to have taken effect after the Restatement Date.
(dc) Notwithstanding This Section 2.10 shall not apply to any demand (i) made after the foregoing, 180th day following the requesting Lender’s knowledge that it would be entitled to any such amounts or (ii) not demanded of other borrowers having similar provisions of to this Section 3.01(a) shall apply with respect to a Benchmark Transaction Event2.10.
(ei) Failure or delay on the part of If any Lender shall give notice to Borrower that such Lender is entitled to receive and is requesting payments under this Section 2.10 or Issuing Bank requires Borrower to demand compensation pay additional amounts pursuant to this Section 5.01 4.04 (any such Lender, an “Increased Cost Lender”), then Borrower may, after (solely in the case of an Increased Cost Lender) giving such Increased Cost Lender an opportunity to mitigate pursuant to Section 2.02, if applicable, at its sole expense and effort, permanently replace such Increased Cost Lender with one or more substitute Lenders reasonably acceptable to the Administrative Agent (each, a “Replacement Lender”), and such Increased Cost Lender shall have no right to refuse to be replaced hereunder. Such notice to replace the Increased Cost Lender shall specify an effective date for such replacement, which date shall not constitute a waiver of be sooner than five (5) Business Days and not be later than ten (10) Business Days after the date such Lender’s or Issuing Bank’s right to demand such compensation; notice is given, provided that (i) such Increased Cost Lender shall have received payment of an amount equal to the outstanding Obligations payable to it from the assignee (to the extent of outstanding principal and accrued interests and fees) or Borrower (in the case of all other amounts) and (ii) such assignment does not conflict with Applicable Law. Notwithstanding anything to the contrary herein, a Lender shall not be required to compensate a Lender or Issuing Bank make any such assignment pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days 2.10(d) if, prior to the effective date that for such replacement, as a result of a waiver by such Lender or Issuing Bankotherwise, as the case may becircumstances entitling Borrower to require such assignment pursuant to this Section 2.10(d) cease to apply.
(ii) Prior to the effective date of such replacement, notifies the Borrower Increased Cost Lender and each Replacement Lender shall execute and deliver an Assignment and Acceptance, subject only to the Increased Cost Lender being repaid all Obligations owed to it through the effective date of the Change in Law giving rise replacement. If the Increased Cost Lender shall refuse or fail to execute and deliver any such increased costs or reductions Assignment and Acceptance prior to the effective date of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further thatreplacement, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above Increased Cost Lender shall be extended deemed to include have executed and delivered such Assignment and Acceptance. The replacement of any Increased Cost Lender shall be made in accordance with the period terms of retroactive effect thereofSection 12.06.
Appears in 2 contracts
Samples: Credit Agreement (Verano Holdings Corp.), Credit Agreement (Verano Holdings Corp.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank the Required Lenders shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan LIBOR Rate for any Interest Period that, that (x) deposits in the principal amounts and currencies of the Term Loans comprising such LIBOR Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the interbank LIBOR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for the definition of LIBOR Rate; provided that, in each case, no Benchmark Transition Event shall have occurred at such SOFR Loantime; or
(ii) at any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR LIBOR Loans (other than any increased cost increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any attributable to (Ai) Indemnified TaxesTaxes and Taxes indemnifiable under Section 5.4, (Bii) net income Taxes and franchise and excise Taxes (imposed in lieu of net income Taxes) imposed on any Agent or Lender or (iii) Taxes described in included under clauses (bc) through (df) of the definition of “Excluded Taxes and (C) Connection Income Taxes”) because of (1x) any Change in Law change since the Closing Date in any Applicable Law (includingor in the interpretation or administration thereof and including the introduction of any new Applicable Law), but not limited tosuch as, for example, without limitation, a change in requirements for any reserveofficial reserve requirements, special deposit, liquidity or similar requirements and/or (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) or (2y) other circumstances adversely affecting the availability interbank LIBOR market or the position of Term SOFRsuch Lender in such market; or
(iii) at any time, that the making or continuance of any SOFR LIBOR Loan has become unlawful by as a result of compliance by such Lender in good faith with any Change in Applicable Law since the Closing Date, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRinterbank LIBOR market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR LIBOR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing Conversion or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR LIBOR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowingas applicable, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, of or a different method of calculating, interest or otherwise otherwise, as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiisubclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawApplicable Law.
(b) At any time that any SOFR LIBOR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Loan LIBOR Loan, affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if the affected SOFR LIBOR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected SOFR LIBOR Loan is then then-outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, Agent require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to occurring after the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s or its Affiliates’ capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation or any Affiliate thereof could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any Applicable Law as in effect on the Closing Date. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 2 contracts
Samples: Credit Agreement (Vistra Corp.), Credit Agreement (Vistra Corp.)
Increased Costs, Illegality, etc. (a) In the event that (w) in the case of clause (i)(A) and (B) below, the Administrative Agent, (x) in the case of Section 5.01(a)(iclause (i)(C) below, the Administrative Agent or the Required Lenders, (y) in the case of Sections 5.01(a)(iiclauses (ii) below, the Required Term Loan Lenders (with respect to Term Loans) or the Required Revolving Credit Lenders (with respect to Revolving Credit Commitments) and (z) in the case of clause (iii) below, any Lender or Issuing Bank Lender, shall have reasonably determined on a reasonable basis (in each case, which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan Eurodollar Rate for any Interest Period thatthat (A) deposits in the principal amounts and currencies of the Loans comprising such Borrowing of Eurodollar Loans are not generally available in the relevant market, by reason of any changes arising after the Closing Date, (B) adequate and fair reasonable means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement the definition of Eurodollar Rate or (C) for any reason the Eurodollar Rate for any requested Interest Period with respect to such SOFR proposed Eurodollar Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurodollar Loan; or
(ii) at any time, that such Lender or Issuing Bank Lenders shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Eurodollar Loans (including any increased costs or reductions attributable to Taxes, other than any increased cost increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any attributable to (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and or (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (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) or (2) other circumstances adversely affecting the availability of Term SOFRLaw; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender in good faith with that any Change law, governmental rule, regulation, guideline or order (in Law since the Closing Date, each case whether or would conflict with any thereof not having the force of law but law) has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its Lending Office to perform any of its obligations hereunder or make, maintain or fund or charge interest with which respect to any Loan or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender customarily compliesto purchase or sell, or has become impracticable as a result of a contingency occurring after to take deposits of, Dollars in the Closing Date that materially adversely affects the availability of SOFRinterbank Eurodollar market; (such Loans, “Impacted Loans”), then, and in each any such event, such Lender Lender, Required Lenders, Required Term Loan Lenders or Issuing Bank Required Revolving Credit Lenders, as applicable (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i)(A) or (B) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, (1) the obligation of the Lenders to make or maintain Eurodollar Loans shall be suspended (to the extent of the affected Type Eurodollar Loans or Interest Periods) and (2) in the event of SOFR Loans such a determination with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall no longer be available suspended, in each case until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Committed Loan Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Eurodollar Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender Required Term Loan Lenders or Issuing BankRequired Revolving Credit Lenders, upon as applicable, promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank Lenders in their reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank Lenders for such actual increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed necessary to compensate such Lender or Issuing BankLenders, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank Lenders shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) ), and (z) in the case of Section 5.01(a)(iiiclause (iii) above, (1) the obligation of such Lender to make, maintain, fund or charge interest with respect to any Eurodollar Loans or continue Eurodollar Loans or convert Base Rate Loans to Eurodollar Loans shall be suspended and (2) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist and the Borrower shall take one of the actions specified in clause (x) or (y), as applicable, of Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by law. Notwithstanding the foregoing, if the Administrative Agent has made the determination described in Section 2.10(a)(i)(A), the Administrative Agent, in consultation with the Borrower and the affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (A) of Section 2.10(a)(i), (2) the Administrative Agent or the affected Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (3) any Lender determines that any law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrower written notice thereof.
(b) At any time that any SOFR Eurodollar Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Eurodollar Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if a Committed Loan Notice with respect to an affected Eurodollar Loan has been submitted pursuant to Section 2.2 but the affected SOFR Eurodollar Loan is then being made pursuant to a Borrowinghas not been funded or continued, cancel such requested Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank Lenders pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the an affected SOFR Eurodollar Loan is then outstanding, upon at least one three Business Day’s Days’ notice (or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Loan) to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR Eurodollar Loan into an ABR Loana Base Rate Loan (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate); provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined or Letter of Credit Issuer determines that after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by of such Lender or Letter of Credit Issuer or any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lending Office of such Lender or compliance by such any Lender or its Letter of Credit Issuer or such Lender’s or Letter of Credit Issuer’s parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the actual rate of return on such Lender’s, such Letter of Credit Issuer’s or its parent corporationsuch Lender’s or Letter of Credit Issuer’s parent’s or Affiliate’s capital or assets as a consequence of this Agreement, such XxxxxxLender’s commitments commitments, Loans, participations in Letters of Credit, Swing Line Loans or other obligations hereunder or the Letters of Credit issued by such Letter of Credit Issuer, to a level below that which such Lender Lender, such Letter of Credit Issuer or its such Lender’s or Letter of Credit Issuer’s parent corporation or Affiliate could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationsuch Letter of Credit Issuer’s policies or the policies of such Lender’s or Letter of Credit Issuer’s parent or Affiliate with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer or its parent or Affiliate, as the case may be, such actual additional amount or amounts as will compensate such Lender or its Letter of Credit Issuer or such Lender’s or Letter of Credit Issuer’s parent corporation for such actual reduction, it being understood and agreed, however, no Lender or Letter of Credit Issuer shall seek compensation under this Section 2.10(c) based on the occurrence of a Change in Law unless such Lender or Letter of Credit Issuer (in such Lender’s or Letter of Credit Issuer’s reasonable determination) is generally seeking compensation from other borrowers in the unsecured REIT loan market with respect to its similarly affected commitments, loans and/or participations under agreements with such borrowers (but not necessarily all such borrowers) having provisions similar to this Section 2.10(c); provided that in no event shall any Lender or Letter of Credit Issuer be required to disclose information of other borrowers. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent promptly following receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 2 contracts
Samples: Credit Agreement (Americold Realty Trust), Credit Agreement (Americold Realty Trust)
Increased Costs, Illegality, etc. (a) In the event that (w) in the case of clause (i)(A) and (B) below, the Administrative Agent, (x) in the case of Section 5.01(a)(iclause (i)(C) below, the Administrative Agent or the Required Lenders, (y) in the case of Sections 5.01(a)(iiclauses (ii) below, the Required Term Loan Lenders (with respect to Term Loans) or the Required Revolving Credit Lenders (with respect to Revolving Credit Commitments) and (z) in the case of clause (iii) below, any Lender or Issuing Bank Lender, shall have reasonably determined on a reasonable basis (in each case, which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan Eurocurrency Rate for any Interest Period thatthat (A) deposits in the principal amounts and currencies of the Loans comprising such Borrowing of Eurocurrency Loans are not generally available in the relevant market, by reason of any changes arising after the Closing Date, (B) adequate and fair reasonable means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement the definition of “Eurocurrency Rate” or (C) for any reason the Eurocurrency Rate for any requested Interest Period with respect to such SOFR proposed Eurocurrency Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurocurrency Loan; or
(ii) at any time, that such Lender or Issuing Bank Lenders shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Eurocurrency Loans (including any increased costs or reductions attributable to Taxes, other than any increased cost increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any attributable to (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and or (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (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) or (2) other circumstances adversely affecting the availability of Term SOFRLaw; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender in good faith with that any Change law, governmental rule, regulation, guideline or order (in Law since the Closing Date, each case whether or would conflict with any thereof not having the force of law but 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 perform any of its obligations hereunder or make, maintain or fund or charge interest with which respect to any Loan or to determine or charge interest rates based upon the Eurocurrency Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender customarily compliesto purchase or sell, or has become impracticable as a result of a contingency occurring after to take deposits of, Dollars or any Alternative Currency in the Closing Date that materially adversely affects the availability of SOFRapplicable interbank market; (such Loans, “Impacted Loans”), then, and in each any such event, such Lender Lender, Required Lenders, Required Term Loan Lenders or Issuing Bank Required Revolving Credit Lenders, as applicable (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i)(A) or (B) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, (1) the obligation of the Lenders to make or maintain Eurocurrency Loans shall be suspended (to the extent of the affected Type Eurocurrency Loans or Interest Periods) and (2) in the event of SOFR Loans such a determination with respect to the Eurocurrency Rate component of the Base Rate, the utilization of the Eurocurrency Rate component in determining the Base Rate shall no longer be available suspended, in each case until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Committed Loan Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Eurocurrency Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender Required Term Loan Lenders or Issuing BankRequired Revolving Credit Lenders, upon as applicable, promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank Lenders in their reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank Lenders for such actual increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed necessary to compensate such Lender or Issuing BankLenders, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank Lenders shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) ), and (z) in the case of Section 5.01(a)(iiiclause (iii) above, (1) the obligation of such Lender to make, maintain, fund or charge interest with respect to any affected Eurocurrency Loans, to continue any affected Eurocurrency Loans or, in the case of Eurocurrency Loans in Dollars, to convert Base Rate Loans to Eurocurrency Loans shall be suspended and (2) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurocurrency Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist and the Borrower shall take one of the actions specified in clause (x) or (y), as applicable, of Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by law. Notwithstanding the foregoing, if the Administrative Agent has made the determination described in Section 2.10(a)(i)(A), the Administrative Agent, in consultation with the Borrower and the affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (A) of Section 2.10(a)(i), (2) the Administrative Agent or the affected Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (3) any Lender determines that any law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrower written notice thereof.
(b) At any time that any SOFR Eurocurrency Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Eurocurrency Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if a Committed Loan Notice with respect to an affected Eurocurrency Loan has been submitted pursuant to Section 2.2 but the affected SOFR Eurocurrency Loan is then being made pursuant to a Borrowinghas not been funded or continued, cancel such requested Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank Lenders pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the an affected SOFR Eurocurrency Loan is then outstanding, upon at least one three Business Day’s Days’ notice (or immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Loan) to the Administrative Agent, prepay or, if any such Eurocurrency Loan is denominated in Dollars, require the affected Lender or Issuing Bank to Convert convert each such SOFR Eurocurrency Loan denominated in Dollars into an ABR Loana Base Rate Loan (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate); provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b). Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
(c) If any Lender shall have determined or Letter of Credit Issuer determines that after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by of such Lender or Letter of Credit Issuer or any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lending Office of such Lender or compliance by such any Lender or its Letter of Credit Issuer or such Lender’s or Letter of Credit Issuer’s parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the actual rate of return on such Lender’s, such Letter of Credit Issuer’s or its parent corporationsuch Lender’s or Letter of Credit Issuer’s parent’s or Affiliate’s capital or assets as a consequence of this Agreement, such XxxxxxLender’s commitments commitments, Loans, participations in Letters of Credit, Swing Line Loans or other obligations hereunder or the Letters of Credit issued by such Letter of Credit Issuer, to a level below that which such Lender Lender, such Letter of Credit Issuer or its such Lender’s or Letter of Credit Issuer’s parent corporation or Affiliate could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationsuch Letter of Credit Issuer’s policies or the policies of such Lender’s or Letter of Credit Issuer’s parent or Affiliate with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer or its parent or Affiliate, as the case may be, such actual additional amount or amounts as will compensate such Lender or its Letter of Credit Issuer or such Lender’s or Letter of Credit Issuer’s parent corporation for such actual reduction, it being understood and agreed, however, no Lender or Letter of Credit Issuer shall seek compensation under this Section 2.10(c) based on the occurrence of a Change in Law unless such Lender or Letter of Credit Issuer (in such Lender’s or Letter of Credit Issuer’s reasonable determination) is generally seeking compensation from other borrowers in the unsecured REIT loan market with respect to its similarly affected commitments, loans and/or participations under agreements with such borrowers (but not necessarily all such borrowers) having provisions similar to this Section 2.10(c); provided that in no event shall any Lender or Letter of Credit Issuer be required to disclose information of other customers. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent promptly following receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 2 contracts
Samples: Credit Agreement (Americold Realty Trust), Credit Agreement (Americold Realty Trust)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties heretohereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period Determination Date that, by reason of any changes arising after the Closing Datedate of this Agreement affecting the interbank eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; orthe definition of “LIBO Rate”;
(ii) at any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) LIBO Rate Loan because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (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) or (2) other circumstances adversely affecting the availability of Term SOFRLaw; or
(iii) at any time, that if the making or continuance of any SOFR LIBO Rate Loan has become been made (x) unlawful by any Change in Law, (y) impossible by compliance by such any Lender in good faith with any Change in Law since the Closing Date, governmental request (whether or would conflict with any thereof not having the force of law but with which such Lender customarily complies, law) or has become (z) impracticable as a result of a contingency occurring after the Closing Date that which materially and adversely affects the availability of SOFRinterbank eurodollar market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give notice (by telephone promptly confirmed in writing) to Lead Borrower and, except in the Borrower and 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 Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR LIBO Rate Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing 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/Continuation or Conversion given by the Lead Borrower with respect to such Type of SOFR LIBO Rate Loans that which have not yet been incurred, Converted or Continued incurred (including by way of conversion) shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of BorrowingBorrowers, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall each Borrower, jointly and severally, agrees to pay to such Lender or Issuing BankLender, upon 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 Lender or Issuing Bank in its sole discretion shall determine) as shall be required to compensate such Lender or Issuing Bank 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 Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must shall be reasonable, submitted to the Lead Borrower by such Lender or Issuing Bank and shall, absent manifest error, be final and conclusive and binding upon on all the parties hereto) and ), (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower Borrowers shall take one of the actions specified in Section 5.01(b3.01(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any SOFR LIBO Rate Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii3.01(a)(ii), the Lead Borrower may (may, and in the case of a SOFR LIBO Rate Loan affected pursuant to by the circumstances described in Section 5.01(a)(iii) the 3.01(a)(iii), Lead Borrower shall) , either (ix) if the affected SOFR LIBO Rate Loan is then being made initially or pursuant to a Borrowingconversion, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Lead Borrower was notified by a the affected Lender or Issuing Bank the Administrative Agent pursuant to Section 5.01(a)(ii3.01(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected SOFR LIBO Rate Loan is then outstanding, upon at least one three Business Day’s Days’ written notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each convert such SOFR LIBO Rate Loan into an ABR a Base Rate Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b3.01(b).
(c) If any Lender shall have determined determines that after the Closing Date, Date any Change in Law regarding Law, will have the effect of increasing the amount of capital adequacy or liquidity by any Governmental Authority, central bank required or comparable agency charged by law with the interpretation or administration thereof, or compliance expected to be maintained by such Lender or its parent any corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by controlling such Lender based on the existence of such Lender’s Commitments hereunder or its obligations hereunder, then each Borrower, jointly and severally, agrees to pay to such Lender, upon its written demand therefor, such additional documented amounts as shall be material required to compensate such Lender or such other corporation for the increased cost to such Lender or such other corporation or the reduction in the rate of return on to such Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable; provided that such Lender’s or its parent corporation’s capital or assets as a consequence determination of such Xxxxxx’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoptioncompensation owing under this Section 3.01(c) shall, effectivenessabsent manifest error, change or compliance (taking into consideration such Lender’s or its parent corporation’s policies with respect to capital adequacy be final and liquidity), then from time to time, within 15 days after demand by such Lender (with a copy to conclusive and binding on all the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reductionparties hereto. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c3.01(c), will give prompt written notice thereof to the Lead Borrower, which notice shall set forth, show in reasonable detail, detail the basis of the for calculation of such additional amounts, which basis must be reasonable, 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 5.01(c) upon the subsequent receipt of such notice.
(d) . Notwithstanding the foregoingabove, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank will not be entitled to demand compensation pursuant to for any increased cost or reduction set forth in this Section 5.01 shall 3.01 at any time if it is not constitute a waiver the general practice and policy of such Lender’s or Issuing Bank’s right Lender to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that compensation from similarly situated borrowers in similar circumstances at such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereoftime.
Appears in 2 contracts
Samples: Revolving Credit Agreement (VERRA MOBILITY Corp), Revolving Credit Agreement (VERRA MOBILITY Corp)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or (with respect to Term Loans) and (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank the Required Lenders shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan Adjusted LIBOR Rate for any Interest Period that, that (x) deposits in the principal amounts and currencies of the Loans comprising such LIBOR Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the applicable London or other interbank market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of LIBOR Rate; or
(ii) at any time, that such Lender or Issuing Bank Lenders shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR LIBOR Loans (including any increased costs or reductions attributable to Taxes, other than any increased cost increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) attributable to Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income or Other Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (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) or (2) other circumstances adversely affecting the availability of Term SOFRLaw; or
(iii) at any time, that the making or continuance of any SOFR LIBOR Loan has become unlawful by compliance by such Lender Lenders in good faith with any Change in Law since the Closing Datelaw, governmental rule, regulation, guideline or order (or would conflict with any thereof such governmental rule, regulation, guideline or order not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRinterbank LIBOR market; (such Loans, “Impacted Loans”), then, and in each any such event, such Lender or Issuing Bank Required Lenders (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR LIBOR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of SOFR LIBOR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLenders, upon promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank Required Lenders in their reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank Lenders for such actual increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLenders, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank Lenders shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) ), and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in subclause (x) or (y), as applicable, of Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by law. Notwithstanding the foregoing, if the Administrative Agent has made the determination described in Section 2.10(a)(i)(x), the Administrative Agent, in consultation with the Borrower and the affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (x) of the first sentence of the immediately preceding paragraph, (2) the Administrative Agent or the affected Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (3) any Lender determines that any Requirement of Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrower written notice thereof.
(b) At any time that any SOFR LIBOR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR LIBOR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if a Notice of Borrowing or Notice of Conversion or Continuation with respect to the affected SOFR LIBOR Loan is then being made has been submitted pursuant to a BorrowingSection 2.3 but the affected LIBOR Loan has not been funded or continued, cancel such requested Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank Lenders pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected SOFR LIBOR Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to occurring after the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the actual rate of return on such Lender’s or its parent corporationparent’s or its Affiliate’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation or its Affiliate could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such actual additional amount or amounts as will compensate such Lender or its parent corporation for such actual reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any law, rule or regulation as in effect on the Closing Date or to the extent such Lender is not imposing such charges on, or requesting such compensation from, borrowers (similarly situated to the Borrower hereunder) under comparable syndicated credit facilities similar to the Credit Facilities. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent promptly following receipt of such notice.
(d) Notwithstanding If the foregoingAdministrative Agent shall have received notice from the Required Lenders, as applicable, that the Adjusted LIBOR Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as certified by such Lenders) of making or maintaining its affected LIBOR Loans during such Interest Period, the provisions of Section 3.01(aAdministrative Agent shall give notice thereof to the Borrower and the Lenders as soon as practicable thereafter (which notice shall include supporting calculations in reasonable detail). If such notice is given, (i) shall apply with respect any LIBOR Loan requested to a Benchmark Transaction Event.
(e) Failure or delay be made on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver first day of such Lender’s Interest Period shall be made as an ABR Loan, (ii) any Loans that were to have been converted on the first day of such Interest Period to LIBOR Loans shall be continued as an ABR Loan and (iii) any outstanding LIBOR Loans shall be converted, on the first day of such Interest Period, to ABR Loans. Until such notice has been withdrawn by the Administrative Agent, no further LIBOR Loans shall be made or Issuing Bank’s continued as such, nor shall the Borrower have the right to demand such compensation; provided that the Borrower shall not be required convert ABR Loans to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereofLIBOR Loans.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Focus Financial Partners Inc.), Second Lien Credit Agreement (Focus Financial Partners Inc.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank Lender, shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan Eurodollar Rate for any Interest Period that, that (x) deposits in the principal amounts of the Loans comprising any Borrowing of Eurodollar Loans are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the London interbank eurocurrency market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of “Eurodollar Rate”; or
(ii) at any timethat, that such Lender or Issuing Bank due to a Change in Law, which shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender or Issuing Bank(except any reserve requirement taken into account in determining the Statutory Reserves); (B) or subject any Lender to any Tax (other than (1) Taxes indemnifiable under Section 5.4, (2) Excluded Taxes or (3) Taxes described in Section 5.4(f)) on its loans, loan principal, letters of credits, commitments or other circumstances adversely obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (C) impose on any Lender or the London interbank eurocurrency market any other condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender (other than Taxes), which results in the availability cost to such Lender of Term SOFRmaking, converting into, continuing or maintaining Eurodollar Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) at any timetime after the Closing Date, that the making or continuance of any SOFR Eurodollar Loan has become unlawful by compliance by such Lender in good faith with any Change in Applicable Law since the Closing Date, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRLondon interbank eurocurrency market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of SOFR Eurodollar Loans that have not yet been incurred, Converted or Continued Incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than ten Business Days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawApplicable Law.
(b) At any time that any SOFR Eurodollar Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Eurodollar Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if the affected SOFR Eurodollar Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected SOFR Eurodollar Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR Eurodollar Loan into an ABR Loan, if applicable; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, requirements has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s capital or assets as a consequence of such XxxxxxLender’s or Letter of Credit Issuer’s commitments or obligations hereunder to a level below that which such Lender or its Letter of Credit Issuer or their respective parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s policies with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly (but no later than ten Business Days) after written demand by such Lender or Letter of Credit Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer such additional amount or amounts as will compensate such Lender or its Letter of Credit Issuer or their respective parent corporation for such reduction, it being understood and agreed, however, that a Lender or Letter of Credit Issuer shall not be entitled to such compensation as a result of such Lender’s or Letter of Credit Issuer’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the Closing Date except as a result of a Change in Law. Each LenderLender or Letter of Credit Issuer, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, Borrower (on its own behalf) which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding any of the foregoingprovisions in this Agreement (including Section 2.11) to the contrary, if the Borrower and the Administrative Agent reasonably determine in good faith that an interest rate is not ascertainable pursuant to the provisions of Section 3.01(athe definition of “Eurodollar Rate” or “Reference Rate” and the inability to ascertain such rate is unlikely to be temporary, the “Eurodollar Rate” and “Reference Rate” shall be an alternate rate that is reasonably commercially practicable for the Administrative Agent to administer (as determined by the Administrative Agent in its reasonable discretion) that is either: (i) an alternate rate established by the Administrative Agent and the Borrower that is generally accepted as the then prevailing market convention for determining a rate of interest for syndicated leveraged loans of this type in the United States at such time, in which case, the Administrative Agent and the Borrower shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (including the making of appropriate adjustments to such alternate rate and this Agreement (x) to preserve pricing in effect at the time of selection of such alternate rate (but for the avoidance of doubt which would not reduce the Applicable Margin) and (y) other changes necessary to reflect the available interest periods for such alternate rate) (the “Market Convention Rate”) or (ii) if a Market Convention Rate is not available in the reasonable determination of the Administrative Agent and the Borrower acting in good faith, an alternate rate, at the option of the Borrower, either (x) established by the Administrative Agent and the Borrower, so long as the Lenders shall have received at least five Business Days’ prior written notice thereof (the “Notice Period”), in which case, the Administrative Agent and the Borrower shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable; provided that such alternate rate shall not apply to (and any such amendment shall not be effective with respect to) any Class for which the Administrative Agent has received a written objection within the Notice Period from the Required Lenders of such Class (with the Required Lenders of such Class determined as if such Class of Lenders were the only Class of Lenders hereunder at the time), or (y) selected by the Borrower and the Required Lenders of any applicable Class (with the Required Lenders of such Class determined as if such Class of Lenders were the only Class of Lenders hereunder at the time) solely with respect to such Class, in which case, the Required Lenders of such Class and the Borrower shall, subject to 15 Business Days’ prior written notice to the Administrative Agent, enter into an amendment to this Agreement to reflect such alternate rate of interest for such Class and make such other related changes to this Agreement as may be necessary to reflect such alternate rate applicable to such Class) (any such alternate rate so established in accordance with the foregoing provisions of this clause (d), the “Successor Benchmark Rate”); provided that, in the case of each of clauses (i) and (ii), any such amendment shall become effective without any further action or consent of any other party to this Agreement, notwithstanding anything to the contrary in Section 13.1; provided, further, that until such Successor Benchmark Rate has been determined pursuant to this paragraph, (A) any request for Borrowing, the conversion of any Borrowing to, or continuation of any Borrowing as, a Benchmark Transaction EventEurodollar Borrowing shall be ineffective and (B) all outstanding Borrowings shall be converted to an ABR Borrowing.
(e) Failure The agreements in this Section 2.10 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(f) Notwithstanding the foregoing, no Lender or delay Letter of Credit Issuer shall be entitled to seek compensation under this Section 2.10 based on the part occurrence of a Change in Law arising solely from (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or any requests, rules, guidelines or directives thereunder or issued in connection therewith or (y) Basel III or any requests, rules, guidelines or directives thereunder or issued in connection therewith, unless such Lender or Issuing Bank Letter of Credit Issuer is generally seeking compensation from other borrowers in the U.S. leveraged loan market with respect to demand compensation pursuant its similarly affected commitments, loans and/or participations under agreements with such borrowers having provisions similar to this Section 5.01 2.10.
(g) This Section 2.10 shall not constitute a waiver operate to provide payments that are duplicative of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be those required to compensate a Lender or Issuing Bank pursuant to this under Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof5.4.
Appears in 2 contracts
Samples: Incremental Agreement (Grocery Outlet Holding Corp.), First Lien Credit Agreement (Grocery Outlet Holding Corp.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or and (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender the Required Term Loan Lenders (with respect to Term Loans) or Issuing Bank the Required Revolving Credit Lenders (with respect to Revolving Credit Commitments) shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan LIBOR Rate for any Interest Period that, that (x) deposits in the principal amounts and currencies of the Loans comprising such LIBOR Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the interbank LIBOR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of LIBOR Rate; or
(ii) at any time, that such Lender or Issuing Bank Lenders shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR LIBOR Loans (including any increased costs or reductions attributable to Taxes, other than any increased cost increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) attributable to Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) or Other Taxes because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (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) or (2) other circumstances adversely affecting the availability of Term SOFRLaw; or
(iii) at any time, that the making or continuance of any SOFR LIBOR Loan has become unlawful by compliance by such Lender Lenders in good faith with any Change in Law since the Closing Datelaw, governmental rule, regulation, guideline or order (or would conflict with any thereof such governmental rule, regulation, guideline or order not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRinterbank LIBOR market; (such Loans, “Impacted Loans”), then, and in each any such event, such Lender Required Term Loan Lenders or Issuing Bank Required Revolving Credit Lenders, as applicable (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to Holdings, the Borrower Borrower, and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR LIBOR Loans shall no longer be available until such time as the Administrative Agent notifies Holdings, the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR LIBOR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLenders, upon promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender Required Term Loan Lenders or Issuing Bank Required Revolving Credit Lenders, as applicable, in their reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank Lenders for such actual increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLenders, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank Lenders shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) ), and (z) in the case of Section 5.01(a)(iiisubclause (iii) above, the Borrower shall take one of the actions specified in subclause (x) or (y), as applicable, of Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by law. Notwithstanding the foregoing, if the Administrative Agent has made the determination described in Section 2.10(a)(i)(x), the Administrative Agent, in consultation with the Borrower and the affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (x) of the first sentence of the immediately preceding paragraph, (2) the Administrative Agent or the affected Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (3) any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrower written notice thereof.
(b) At any time that any SOFR LIBOR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR LIBOR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if a Notice of Borrowing or Notice of Conversion or Continuation with respect to the affected SOFR LIBOR Loan is then being made has been submitted pursuant to a BorrowingSection 2.3 but the affected LIBOR Loan has not been funded or continued, cancel such requested Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank Lenders pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected SOFR LIBOR Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to occurring after the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the actual rate of return on such Lender’s or its parent corporationparent’s or its Affiliate’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation or its Affiliate could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such actual additional amount or amounts as will compensate such Lender or its parent corporation for such actual reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any law, rule or regulation as in effect on the Closing Date or to the extent such Lender is not imposing such charges on, or requesting such compensation from, borrowers (similarly situated to the Borrower hereunder) under comparable syndicated credit facilities similar to the Credit Facilities. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent promptly following receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to It is understood that this Section 5.01 2.10 shall not constitute a waiver of such Lender’s apply to (i) Taxes indemnifiable under Section 5.4 or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.(ii)
Appears in 2 contracts
Samples: First Lien Credit Agreement (BrightView Holdings, Inc.), First Lien Credit Agreement (BrightView Holdings, Inc.)
Increased Costs, Illegality, etc. (a) In the event that (w) in the case of clause (i)(A) and (B) below, the Administrative Agent, (x) in the case of Section 5.01(a)(iclause (i)(C) below, the Administrative Agent or the Required Lenders, (y) in the case of Sections 5.01(a)(iiclauses (ii) below, the Required Term A-1 Lenders (with respect to Term A-1 Loans), the Required Term A-2 Lenders (with respect to Term A-2 Loans) or the Required Revolving Credit Lenders (with respect to Revolving Credit Commitments) and (z) in the case of clause (iii) below, any Lender or Issuing Bank Lender, shall have reasonably determined on a reasonable basis (in each case, which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan Eurocurrency Rate for any Interest Period thatthat (x) (A) deposits in the principal amounts and currencies of the Loans comprising such Borrowing of Eurocurrency Loans or LIBOR Floating Rate Loans are not generally available in the relevant market, by reason of any changes arising after the Closing Date, (B) adequate and fair reasonable means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement the definition of “Eurocurrency Rate” or (C) for any reason the Eurocurrency Rate for any requested Interest Period with respect to such SOFR Loanproposed Eurocurrency Committed Loan or LIBOR Floating Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan and (y) the circumstances described in Section 2.9 do not apply; or
(ii) at any time, that such Lender or Issuing Bank Lenders shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (including any increased costs or reductions attributable to Taxes, other than any increased cost increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any attributable to (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and or (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (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) or (2) other circumstances adversely affecting the availability of Term SOFRLaw; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender in good faith with that any Change law, governmental rule, regulation, guideline or order (in Law since the Closing Date, each case whether or would conflict with any thereof not having the force of law but 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 perform any of its obligations hereunder or make, maintain or fund or charge interest with which respect to any Loan or to determine or charge interest rates based upon the Eurocurrency Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender customarily compliesto purchase or sell, or has become impracticable as a result of a contingency occurring after to take deposits of, Dollars or any Alternative Currency in the Closing Date that materially adversely affects the availability of SOFRapplicable interbank market; (such Loans, “Impacted Loans”), then, and in each any such event, such Lender Lender, Required Lenders, Required Term A-1 Lenders, Required Term A-2 Lenders or Issuing Bank Required Revolving Credit Lenders, as applicable (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i)(A) or (B) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Parent Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, (1) the obligation of the Lenders to make or maintain Eurocurrency Committed Loans shall be suspended (to the extent of the affected Type Eurocurrency Loans or Interest Periods) and (2) in the event of SOFR Loans such a determination with respect to the Eurocurrency Rate component of the Base Rate, the utilization of the Eurocurrency Rate component in determining the Base Rate shall no longer be available suspended, in each case until such time as the Administrative Agent notifies the Parent Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Committed Loan Notice of Borrowing or Notice of Continuation or Conversion given by the Parent Borrower with respect to such Type of SOFR Eurocurrency Committed Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of BorrowingBorrowers, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower Borrowers shall pay to such Lender Required Term A-1 Lenders, Required Term A-2 or Issuing BankRequired Revolving Credit Lenders, upon as applicable, promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank Lenders in their reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank Lenders for such actual increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed necessary to compensate such Lender or Issuing BankLenders, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Parent Borrower by such Lender or Issuing Bank Lenders shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) ), and (z) in the case of Section 5.01(a)(iiiclause (iii) above, (1) the obligation of such Lender to make, maintain, fund or charge interest with respect to any affected Eurocurrency Loans or LIBOR Floating Rate Loans, to continue any affected Eurocurrency Loans or, in the case of Eurocurrency Loans in Dollars, to convert Base Rate Loans or LIBOR Floating Rate Loans to Eurocurrency Committed Loans or convert Eurocurrency Committed Loans to LIBOR Floating Rate Loans shall be suspended and (2) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurocurrency Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Parent Borrower that the circumstances giving rise to such determination no longer exist and the Borrowers shall take one of the actions specified in clause (x) or (y), as applicable, of Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by law. Notwithstanding the foregoing, if the Administrative Agent has made the determination described in Section 2.10(a)(i)(A), the Administrative Agent, in consultation with the Parent Borrower and the affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (A) of Section 2.10(a)(i), (2) the Administrative Agent or the affected Lenders notify the Administrative Agent and the Parent Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (3) any Lender determines that any law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Parent Borrower written notice thereof.
(b) At any time that any SOFR Eurocurrency Loan or LIBOR Floating Rate Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Parent Borrower may (and in the case of a SOFR Eurocurrency Loan or LIBOR Floating Rate Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if a Committed Loan Notice with respect to an affected Eurocurrency Committed Loan or LIBOR Floating Rate Loan has been submitted pursuant to Section 2.2 but the affected SOFR Eurocurrency Committed Loan is then being made pursuant to a Borrowingor LIBOR Floating Rate Loan has not been funded or continued, cancel such requested Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Parent Borrower was notified by a Lender or Issuing Bank Lenders pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the an affected SOFR Eurocurrency Loan or LIBOR Floating Rate Loan is then outstanding, upon at least one three Business Day’s Days’ notice (or immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Loan or LIBOR Floating Rate Loan) to the Administrative Agent, prepay or, if any such Eurocurrency Committed Loan or LIBOR Floating Rate Loan is denominated in Dollars, require the affected Lender or Issuing Bank to Convert convert each such SOFR Eurocurrency Committed Loan or LIBOR Floating Rate Loan denominated in Dollars into an ABR Loana Base Rate Loan (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate); provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b). Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted.
(c) If any Lender shall have determined or Letter of Credit Issuer determines that after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by of such Lender or Letter of Credit Issuer or any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lending Office of such Lender or compliance by such any Lender or its Letter of Credit Issuer or such Lender’s or Letter of Credit Issuer’s parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the actual rate of return on such Lender’s, such Letter of Credit Issuer’s or its parent corporationsuch Lender’s or Letter of Credit Issuer’s parent’s or Affiliate’s capital or assets as a consequence of this Agreement, such XxxxxxLender’s commitments commitments, Loans, participations in Letters of Credit or other obligations hereunder or the Letters of Credit issued by such Letter of Credit Issuer, to a level below that which such Lender Lender, such Letter of Credit Issuer or its such Lender’s or Letter of Credit Issuer’s parent corporation or Affiliate could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationsuch Letter of Credit Issuer’s policies or the policies of such Lender’s or Letter of Credit Issuer’s parent or Affiliate with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly after written demand by such Lender (with a copy to the Administrative Agent), the Parent Borrower shall pay (or cause the applicable Designated Borrower to pay) to such Lender or Letter of Credit Issuer or its parent or Affiliate, as the case may be, such actual additional amount or amounts as will compensate such Lender or its Letter of Credit Issuer or such Lender’s or Letter of Credit Issuer’s parent corporation for such actual reduction, it being understood and agreed, however, no Lender or Letter of Credit Issuer shall seek compensation under this Section 2.10(c) based on the occurrence of a Change in Law unless such Lender or Letter of Credit Issuer (in such Lender’s or Letter of Credit Issuer’s reasonable determination) is generally seeking compensation from other borrowers in the unsecured REIT loan market with respect to its similarly affected commitments, loans and/or participations under agreements with such borrowers (but not necessarily all such borrowers) having provisions similar to this Section 2.10(c); provided that in no event shall any Lender or Letter of Credit Issuer be required to disclose information of other customers. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Parent Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s Borrowers’ obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent promptly following receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-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 (x) in the case of Section 5.01(a)(iclause (i) below, the applicable Administrative Agent or (y) in the case of Sections 5.01(a)(iiclauses (ii), (iii) and (iiiiv) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan LIBOR Rate for any Interest Period that, or the BA Rate for any BA Equivalent Interest Period that (x) deposits in the principal amounts and currencies of the Loans comprising such LIBOR Borrowing or BA Rate Borrowing are not generally available in the relevant market or (y) (A) by reason of any changes arising on or after the Closing DateDate affecting the interbank LIBOR or bankers’ acceptances market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of “LIBOR Rate” or “BA Rate” and (B) the circumstances described in Section 2.10(e)(i) do not apply; or
(ii) at any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR LIBOR Loans or BA Equivalent Loans or Letters of Credit (other than any increased cost increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income attributable to Taxes) because of (1x) any Change in Law since the Closing Date (includingLaw), but not limited tosuch as, for example, without limitation, a change in requirements for any reserveofficial reserve requirements, special deposit, liquidity or similar requirements and/or (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) or (2y) other circumstances adversely affecting the availability interbank LIBOR or bankers’ acceptances market or the position of Term SOFRsuch Lender in such market; or
(iii) at any time, that, as a result of any Change in Law after the date hereof, such Lender shall incur any new or incremental Taxes with respect to any Loan or Letter of Credit or any transaction contemplated hereunder (except for Indemnified Taxes covered by Section 4.5 or any Excluded Tax payable by such Lender); or
(iv) at any time, that the making or continuance of any SOFR LIBOR Loan or BA Equivalent Loans has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Datelaw, governmental rule, regulation, guideline or order (or would conflict with any thereof such governmental rule, regulation, guideline or order not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date date hereof that materially and adversely affects the availability of SOFRinterbank LIBOR or bankers’ acceptances market; then, and in each any such event, such Lender or Issuing Bank (or the applicable Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower Borrowers and to the applicable Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, LIBOR Loans or BA Equivalent Loans in the affected Type of SOFR Loans applicable currency shall no longer be available until such time as the applicable Administrative Agent notifies the applicable Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the such Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the applicable Borrower with respect to such Type of SOFR LIBOR Loans or BA Equivalent Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the applicable Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the applicable Borrower shall pay to such Lender or Issuing BankLender, upon promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the applicable Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiisubclause (iii) above, the applicable Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any SOFR LIBOR Loan or BA Equivalent Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower applicable Borrower(s) may (and in the case of a SOFR LIBOR Loan or BA Equivalent Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if the affected SOFR LIBOR Loan or BA Equivalent Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the such Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (iiy) if the affected SOFR LIBOR Loan denominated in Dollars or BA Equivalent Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan or BA Equivalent Loan into a Canadian Prime Rate Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b)2.10(b) or (z) in the case of any LIBOR Loan denominated in an Alternative Currency, repay such LIBOR Loan at the end of the then current Interest Period.
(c) If any Change in Law relating to capital adequacy or liquidity of any Lender shall have determined that after the Closing Date, or compliance by any Lender or its parent with any Change in Law regarding relating to capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s or its Affiliate’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation or its Affiliate could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 days promptly after demand by such Lender (with a copy to the Administrative Agent), the applicable Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the applicable Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the applicable Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to It is understood that this Section 5.01 2.10 shall not constitute a waiver of such Lender’s apply to (i) Taxes indemnifiable under Section 4.5 or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.(ii)
Appears in 1 contract
Samples: Abl Credit Agreement (Univar Inc.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of clause (i) below (but subject to Section 5.01(a)(i) below2.10(d)), the Administrative Agent Majority Lenders or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank Lender, shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan LIBOR Rate for any Interest Period thatthat (A) deposits in the principal amounts of the Loans comprising such LIBOR Borrowing are not generally available in the relevant market, (B) by reason of any changes arising on or after the Closing DateDate affecting the interbank LIBOR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement the definition of LIBOR Rate, or (C) the LIBOR Rate for such SOFR LoanInterest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period; or
(ii) that, due to a Change in Law occurring at any timetime or after the Closing Date, that such Lender or Issuing Bank which Change in Law shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, (B) subject any Lender to any Tax with respect to any Credit Document or any LIBOR Loan made by it (other than (i) Taxes indemnifiable under Section 5.4, (ii) Taxes described in clauses (ii) and (iii) of the definition of “Excluded Taxes” or (iii) Connection Income Taxes), or (C) impose on any Lender or Issuing Bankthe London interbank market any other condition, cost or expense affecting this Agreement or LIBOR Loans made by such Lender, which results in the cost to such Lender of making, converting into, continuing or maintaining LIBOR Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or (2) other circumstances adversely affecting the availability of Term SOFRamounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) at any time, that the making or continuance of any SOFR LIBOR Loan has become unlawful by as a result of compliance by such Lender in good faith with any Change in Requirement of Law since the Closing Date, (or would conflict with any thereof such Requirement of Law not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after even though the Closing Date that materially adversely affects the availability of SOFRfailure to comply therewith would not be unlawful); then, and in each any such event, such Lender or Issuing Bank Lenders (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR LIBOR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of SOFR LIBOR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than 15 Business Days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawapplicable Requirements of Law.
(b) At any time that any SOFR LIBOR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR LIBOR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (i) if the affected SOFR LIBOR Loan is then being made pursuant to a Borrowinghas been requested but not yet made, cancel such Borrowing request by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (ii) if the affected SOFR LIBOR Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan; provided, however, that but if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by requirements of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to requirements occurring after the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments Commitment or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and liquidityor liquidity requirements), then from time to time, within promptly (but in any event no later than 15 days Business Days) after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any applicable Requirement of Law as in effect on the Closing Date (except as otherwise set forth in the definition of Change in Law). Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding If at any time the foregoingAdministrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in Section 2.10(a)(i)(A) or Section 2.10(a)(i)(B) have arisen and such circumstances are unlikely to be temporary, (ii) the LIBOR Rate is no longer a widely recognized benchmark rate for newly originated loans in the U.S. syndicated loan market in the applicable currency or (iii) the applicable supervisor or the administrator of the LIBOR Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBOR Rate shall no longer be used for determining interest rates for loans, then, in each case, the Administrative Agent may, to the extent practicable (in consultation with the Borrower and as determined by the Administrative Agent to be consistent with market practice generally), establish a replacement interest rate (the “Replacement Rate”), in which case, the Replacement Rate shall, subject to the next two sentences, replace such applicable interest rate for all purposes under the Credit Documents unless and until (A) an event described in Section 2.10(a)(i)(A), (a)(i)(B), (a)(i)(C), (d)(i) or (d)(ii) occurs with respect to the Replacement Rate or (B) the Administrative Agent (or the Required Lenders through the Administrative Agent) notifies the Borrower that the Replacement Rate does not adequately and fairly reflect the cost to the Lenders of funding the Loans bearing interest at the Replacement Rate; but if such Replacement Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. In connection with the establishment and application of the Replacement Rate, the Credit Documents shall be amended solely with the consent of the Administrative Agent, as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 3.01(a) 2.10(d). Notwithstanding anything to the contrary in the Credit Documents (including Section 13.1), such amendment shall apply with respect to a Benchmark Transaction Event.
(e) Failure become effective without any further action or delay on the part consent of any Lender or Issuing Bank to demand compensation pursuant other party to this Section 5.01 Agreement so long as the Administrative Agent shall not constitute a waiver have received, within five Business Days of the date notice of such Lender’s or Issuing Bank’s right amendment (together with a copy of such amendment) to demand the Lenders, notices from such compensationLenders that in the aggregate constitute Required Lenders, with each such notice stating that such Lender objects to such amendment. To the extent the Replacement Rate is approved by the Administrative Agent in connection with this clause (d), the Replacement Rate shall be applied in a manner consistent with market practice; provided but, in each case, to the extent such market practice is not administratively feasible for the Administrative Agent, such Replacement Rate shall be applied as otherwise reasonably determined by the Administrative Agent and the Borrower (it being understood that any such modification by the Administrative Agent and the Borrower shall not be required to compensate a Lender require the consent of, or Issuing Bank pursuant to this Section 5.01 for consultation with, any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided Lenders), provided, further that, if until the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above Replacement Rate shall be extended determined in accordance with this clause (d) (but, in the case of the circumstances described in clause (iii) of this Section 2.10(d), only to include the period extent the LIBOR Rate for such Interest Period is not available or published at such time on a current basis), (x) any Notice of retroactive effect thereofConversion or Continuation that requests the conversion of Borrowing to, or continuation of any Borrowing as, a LIBOR Loan shall be ineffective and (y) if any Notice of Borrowing requests a LIBOR Loan, such Borrowing shall be made as an ABR Loan.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclauses (i) and (iii) below, the Administrative Agent or and (y) in the case of Sections 5.01(a)(iiclauses (ii), (iii) and (iiiiv) below, any Lender or Issuing Bank Lender, as applicable, shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) that on any date for determining the interest rate applicable to any SOFR Loan Adjusted LIBOR Rate for any Interest Period that, (x) deposits in the principal amounts and currencies of the Loans comprising such LIBOR Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the interbank LIBOR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; orthe definition of Adjusted LIBOR Rate;
(ii) that at any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR LIBOR Loans other than with respect to Taxes because of any Change in Law;
(iii) that, due to a Change in Law such Lender or the Administrative Agent shall be subjected to to any Tax (other than any increased cost Indemnified Taxes or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because on its loans, loan principal, letters of (1) any Change in Law since the Closing Date (includingcredits, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirement, insurance charge commitments or other assessment) against assets of, deposits with or for the account ofobligations, or credit extended byits deposits, any Lender reserves, other liabilities or Issuing Bank) or (2) other circumstances adversely affecting the availability of Term SOFRcapital attributable thereto; or
(iiiiv) at any time, that the making or continuance of any SOFR LIBOR Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Datelaw, governmental rule, regulation, guideline or order (or would conflict with any thereof such governmental rule, regulation, guideline or order not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRinterbank LIBOR market; (such Loans, “Impacted Loans”), then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR LIBOR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of SOFR LIBOR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, and (y) in the case of Section 5.01(a)(iiclause (ii) or (iii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank Lender, in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such actual increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporation’s capital or assets as a consequence of such Xxxxxx’s commitments or obligations hereunder to 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 and liquidity), then from time to time, within 15 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, in reasonable detail, the basis of the calculation of such additional amounts, which basis must be reasonable, 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 5.01(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of the Administrative Agent or any Lender or Issuing Bank to demand compensation pursuant to the foregoing provisions of this Section 5.01 2.10(a) shall not constitute a waiver of the Administrative Agent’s or such Lender’s or Issuing Bank’s ’s, as the case may be, right to demand such compensation; provided that the Borrower shall not be required to compensate a the Administrative Agent or any Lender or Issuing Bank pursuant to the foregoing provisions of this Section 5.01 2.10(a) for any increased costs or reductions incurred if the Administrative Agent or such Lender, as the case may be, became aware (or reasonably should have been aware) of such increased costs or reductions more than 270 180 days prior to the date that the Administrative Agent or such Lender or Issuing BankLender, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of the Administrative Agent’s or such Lender’s or Issuing Bank’s ’s, as applicable, intention to claim compensation therefor. Notwithstanding the foregoing, if the Administrative Agent has made the determination described in Section 2.10(a)(i)(x), the Administrative Agent, in consultation with the Borrower and any affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (x) of the first sentence of the immediately preceding paragraph, (2) the Administrative Agent or the affected Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (3) any Lender determines that any law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrower written notice thereof.
(b) At any time that any LIBOR Loan is affected by the circumstances described in Section 2.10(a)(ii), the Borrower may either (x) if a Notice of Borrowing or Notice of Conversion or Continuation with respect to the affected LIBOR Loan has been submitted pursuant to Section 2.3 or Section 2.6 but the affected LIBOR Loan has not been funded or continued, cancel such requested Borrowing by giving the Administrative Agent written notice thereof on the same date that the Borrower was notified by Lenders pursuant to Section 2.10(a)(ii) or (iii) or (y) if the affected LIBOR Loan is then outstanding, upon at least three Business Days’ notice to the Administrative Agent, require the affected Lender to convert each such LIBOR Loan into an ABR Loan; provided further thatthat if more than one Lender is affected at any time, then all affected Lenders must be treated in the same manner pursuant to this Section 2.10(b).
(c) If, after the Closing Date, any Change in Law relating to capital adequacy or liquidity of any Lender or compliance by any Lender or its parent with any Change in Law relating to capital adequacy or liquidity occurring after the Closing Date, has or would have the effect of reducing the actual rate of return on such Lender’s or its parent’s or its Affiliate’s capital or assets as a consequence of such Lender’s commitments or obligations hereunder to a level below that which such Lender or its parent or its Affiliate could have achieved but for such Change in Law (taking into consideration such Lender’s or its parent’s policies with respect to capital adequacy or liquidity) or in the case of Section 2.10(a)(iii), then from time to time, promptly after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such actual additional amount or amounts as will compensate such Lender or its parent for such actual reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any law, rule or regulation as in effect on the Closing Date or, if later, the date on which such Person becomes a Lender hereunder or to the extent such Lender is not imposing such charges on, or requesting such compensation from, borrowers (similarly situated to the Borrower hereunder) under comparable syndicated credit facilities similar to the Credit Facilities. Each Lender, upon determining 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, which notice shall set forth in reasonable detail the basis of the calculation of such additional amounts, although the failure to give any such notice shall not, subject to Section 2.13, release or diminish the Borrower’s obligations to pay additional amounts pursuant to this Section 2.10(c) promptly following receipt of such notice. Failure or delay on the part of the Administrative Agent or any Lender to demand compensation pursuant to the foregoing provisions of this Section 2.10(c) shall not constitute a waiver of the Administrative Agent’s or such Lender’s, as the case may be, right to demand such compensation; provided that the Borrower shall not be required to compensate the Administrative Agent or any Lender pursuant to the foregoing provisions of this Section 2.10(c) for any reductions if the Administrative Agent or Lender, as the case may be, became aware (or reasonably should have been aware) of such reductions more than 180 days prior to the date that the Administrative Agent or such Lender, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs reductions and of the Administrative Agent’s or reductions such Lender’s, as applicable, intention to claim compensation therefor.
(d) If the Administrative Agent shall have received notice from the Required Lenders that the Adjusted LIBOR Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as certified by such Lender) of making or maintaining its affected LIBOR Loans during such Interest Period, the Administrative Agent shall give written notice thereof to the Borrower and the Lenders as soon as practicable thereafter (which notice shall include supporting calculations in reasonable detail). If such notice is retroactivegiven, then (i) any LIBOR Loan requested to be made on the 270-first day period referred to above of such Interest Period shall be extended made an ABR Loan, (ii) any Loans that were to include have been converted on the period first day of retroactive effect thereofsuch Interest Period to LIBOR Loans shall be continued as an ABR Loan and (iii) any outstanding LIBOR Loans shall be converted, on the first day of such Interest Period, to ABR Loans. Until such notice has been withdrawn by the Administrative Agent, no further LIBOR Loans shall be made or continued as such, nor shall the Borrower have the right to convert ABR Loans to LIBOR Loans.
Appears in 1 contract
Samples: Credit Agreement (Del Frisco's Restaurant Group, Inc.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent Required Lenders or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank Lender, as applicable, shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
): (i) on any date for determining the interest rate applicable to any Eurodollar RateAdjusted Term SOFR Loan for any Interest Period that, that (x) deposits in the principal amounts of the Loans comprising any Eurodollar Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the interbank Eurodollarapplicable market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of Eurodollar RateTerm SOFR; or
or (ii) at any timethat, that such Lender or Issuing Bank due to a Change in Law, which shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender; (B) subject any Lender or Issuing Bankto any tax (other than (1) taxes indemnified under Section 5.4, (2) taxes described in clause (A), (B) or (2C) of Section 5.4(a) or (3) taxes described in clause (f) of Section 5.4) on its loans, letters of credits, commitments or other circumstances adversely affecting the availability of Term SOFR; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Dateobligations, or would conflict with its deposits, reserves, other liabilities or capital attributable thereto; or (C) impose on any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of SOFR; then, and in each such event, such Lender or Issuing Bank the London interbankapplicable market any other condition, cost or expense (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give notice (by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing Banks). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(ii) above, the Borrower shall pay to such Lender or Issuing Bank, upon 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 Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law.than
(b) At any time that any SOFR EurodollarSOFR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR EurodollarSOFR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if the affected SOFR EurodollarSOFR Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected SOFR EurodollarSOFR Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR EurodollarSOFR Loan into an ABR Loan, if applicable; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Daterequirements, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s capital or assets as a consequence of such XxxxxxLender’s or Letter of Credit Issuer’s commitments or obligations hereunder to a level below that which such Lender or its Letter of Credit Issuer or their respective parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s policies with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly (but no later than 10 Business Days) after demand by such Lender written demand
(with a copy d) This Section 2.10 shall not apply to taxes to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this extent duplicative of Section 5.01(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, in reasonable detail, the basis of the calculation of such additional amounts, which basis must be reasonable, 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 5.01(c) upon the subsequent receipt of such notice5.4.
(de) The agreements in this Section 2.10 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(f) Notwithstanding the foregoing, no Lender or Letter of Credit Issuer shall be entitled to seek compensation under this Section 2.10 unless such Lender or Letter of Credit Issuer is generally seeking compensation from other similarly situated borrowers in the provisions of Section 3.01(a) shall apply U.S. leveraged loan market with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant its similarly affected commitments, loans and/or participations under agreements with such borrowers having provisions similar to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof2.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; or
(ii) at any time, after the later of the Closing Date and the date such entity became a Lender hereunder, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to the Loans, including as a result of any SOFR Loans Tax (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (Ax) Indemnified Taxes, (By) Taxes described in clauses (b) through (d) of the definition of “Excluded Taxes and Taxes” or (Cz) Connection Income Taxes) because of (1) any Change in Law change since the Closing Date date hereof in any Applicable Law (includingor in the interpretation or administration thereof and including the introduction of any new Applicable Law), but not limited tosuch as, for example, without limitation, a change in requirements for any reserve, special deposit, liquidity or similar official reserve requirements (including any compulsory loan requirementbut excluding changes in the rate of tax on the overall net income of such Lender), insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender or Issuing Bank) or (2) other circumstances adversely affecting the availability of Term SOFR; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of SOFR; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) aboveThereafter, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon within ten (10) Business Days after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law).
(b) At any time that any SOFR Loan is affected by If, after the circumstances described in Section 5.01(a)(ii) or (iii)later of the date hereof and the date such entity becomes a Lender hereunder, the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case adoption of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Applicable Law regarding capital adequacy adequacy, or liquidity any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such a Lender or its parent corporation with any request or directive made or adopted after such date regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, association, central bank, bank or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to 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 corporationparent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 ten (10) days after receipt of written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the date hereof. Each LenderLender (on its own behalf), upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(b), will will, as promptly as practicable upon ascertaining knowledge thereof, give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts. Without limiting Section 2.10(d) below, which basis must be reasonable, although the failure to give any such notice with respect to a particular event shall not release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(b) upon for amounts accrued or incurred after the subsequent receipt date of such noticenotice with respect to such event. Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all rules, regulations, orders, requests, guidelines or directives 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 or foreign regulatory authorities, in each case pursuant to Basel III, in each case, are deemed to have been adopted and to have taken effect after the Closing Date.
(dc) Notwithstanding This Section 2.10 shall not apply to Taxes to the foregoing, the provisions extent duplicative of Section 3.01(a4.04. In addition, this Section 2.10 shall not apply to any demand (i) shall apply with respect made after the 180th day following the requesting Lender’s knowledge that it would be entitled to a Benchmark Transaction Eventany such amounts or (ii) not demanded of other borrowers having similar provisions to this Section 2.10.
(ei) Failure or delay on the part of If any Lender shall give notice to Borrower that such Lender is entitled to receive and is requesting payments under this Section 2.10 or Issuing Bank requires Borrower to demand compensation pay additional amounts pursuant to this Section 5.01 4.04 (any such Lender, an “Increased Cost Lender”), then Borrower may, after (solely in the case of an Increased Cost Lender) giving such Increased Cost Lender an opportunity to mitigate pursuant to Section 2.02, if applicable, at its sole expense and effort, permanently replace such Increased Cost Lender with one or more substitute Lenders reasonably acceptable to the Administrative Agent (each, a “Replacement Lender”), and such Increased Cost Lender shall have no right to refuse to be replaced hereunder. Such notice to replace the Increased Cost Lender shall specify an effective date for such replacement, which date shall not constitute a waiver of be sooner than five (5) Business Days and not be later than ten (10) Business Days after the date such Lender’s or Issuing Bank’s right to demand such compensation; notice is given, provided that (i) such Increased Cost Lender shall have received payment of an amount equal to the outstanding Obligations payable to it from the assignee (to the extent of outstanding principal and accrued interests and fees) or Borrower (in the case of all other amounts) and (ii) such assignment does not conflict with Applicable Law. Notwithstanding anything to the contrary herein, a Lender shall not be required to compensate a Lender or Issuing Bank make any such assignment pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days 2.10(d) if, prior to the effective date that for such replacement, as a result of a waiver by such Lender or Issuing Bankotherwise, as the case may becircumstances entitling Borrower to require such assignment pursuant to this Section 2.10(d) cease to apply.
(ii) Prior to the effective date of such replacement, notifies the Borrower Increased Cost Lender and each Replacement Lender shall execute and deliver an Assignment and Acceptance, subject only to the Increased Cost Lender being repaid all Obligations owed to it through the effective date of the Change in Law giving rise replacement. If the Increased Cost Lender shall refuse or fail to execute and deliver any such increased costs or reductions Assignment and Acceptance prior to the effective date of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further thatreplacement, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above Increased Cost Lender shall be extended deemed to include have executed and delivered such Assignment and Acceptance. The replacement of any Increased Cost Lender shall be made in accordance with the period terms of retroactive effect thereofSection 12.06.
Appears in 1 contract
Samples: Credit Agreement
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties heretohereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period Determination Date that, by reason of any changes arising after Change in Law affecting the Closing DateLondon interbank market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of LIBO Rate; or
(ii) at any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans LIBOR Loan because of (x) any Change in Law, including: (A) any such change subjecting any Recipient to any Taxes (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (Ai) Indemnified Taxes, (Bii) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes Taxes, and (Ciii) Connection Income Taxes) because of or (1B) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserveofficial reserve requirements, special depositbut, liquidity or similar requirements in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBO Rate and/or (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) or (2y) other circumstances adversely affecting such Lender, the availability London interbank market or the position of Term SOFRsuch Lender in such market (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 SOFR LIBOR Loan has become been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by such any Lender in good faith with any Change in Law since the Closing Date, governmental request (whether or would conflict with any thereof not having the force of law but with which such Lender customarily complies, law) or has become (z) impracticable as a result of a contingency occurring after the Closing Date that which materially and adversely affects the availability of SOFRLondon interbank market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give written notice (by telephone confirmed in writing) to the Borrower and 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 Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR LIBOR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower Borrowers and the Lenders or Issuing 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/Continuation or Conversion given by the Borrower Borrowers with respect to such Type of SOFR LIBOR Loans that which have not yet been incurred, Converted or Continued incurred (including by way of conversion) shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of BorrowingBorrowers, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall Borrowers agree to pay to such Lender or Issuing BankLender, upon 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 Lender or Issuing Bank in its sole discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower Borrowers by such Lender or Issuing Bank shall, absent manifest error, be final and conclusive and binding upon on all the parties hereto) ); provided, that the Borrowers shall not be required to pay any such additional amounts incurred more than 365 days prior to the date of such notification from the Lender and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower Borrowers shall take one of the actions specified in Section 5.01(b2.09(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any SOFR LIBOR Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii2.09(a)(ii), the Borrower may (Borrowers may, and in the case of a SOFR LIBOR Loan affected pursuant to by the circumstances described in Section 5.01(a)(iii) 2.09(a)(iii), the Borrower Borrowers shall) , either (ix) if the affected SOFR LIBOR Loan is then being made initially or pursuant to a Borrowingconversion, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was Borrowers were notified by a the affected Lender or Issuing Bank the Administrative Agent pursuant to Section 5.01(a)(ii2.09(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected SOFR LIBOR Loan is then outstanding, upon at least one three Business Day’s Days’ written notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each convert such SOFR LIBOR Loan into an ABR a Base Rate Loan; provided, howeverprovided that, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b2.09(b).
(c) If any Lender shall have determined determines that after the Closing Date, Date the introduction of or any Change in Law regarding Law, will have the effect of increasing the amount of capital adequacy required or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance expected to be maintained by such Lender or its parent any corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by controlling such Lender based on the existence of such Lender’s Term Loan Commitments hereunder or its obligations hereunder, then the Borrowers agree to pay to such Lender, upon its written demand therefor, such additional amounts as shall be material required to compensate such Lender or such other corporation for the increased cost to such Lender or such other corporation or the reduction in the rate of return on to such Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Lender’s or its parent corporation’s capital or assets as a consequence determination of such Xxxxxx’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoptioncompensation owing under this Section 2.09(c) shall, effectivenessabsent manifest error, change or compliance (taking into consideration such Lender’s or its parent corporation’s policies with respect to capital adequacy be final and liquidity), then from time to time, within 15 days after demand by such Lender (with a copy to conclusive and binding on all the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reductionparties hereto. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.09(c), will give prompt written notice thereof to the BorrowerBorrowers, which notice shall set forth, show in reasonable detail, detail the basis of for the calculation of such additional amounts, which basis must be reasonable, 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 5.01(c) upon the subsequent receipt of such notice.
(d) Notwithstanding anything in this Agreement to the foregoingcontrary, (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 provisions of Section 3.01(aBasel Committee on Banking Supervision (or any successor or similar authority) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender United States or Issuing Bank to demand compensation foreign regulatory authorities, in each case pursuant to 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 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof2.09).
Appears in 1 contract
Samples: Credit Agreement (Keane Group, Inc.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Majority Lenders or the Administrative Agent Agent, as applicable, or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank Lender, shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on On or prior to any date for determining SOFR, Term SOFR, the interest rate applicable to any Term SOFR Loan Reference Rate or Adjusted Term SOFR for any Interest Period thatthat (A) Adjusted Term SOFR cannot be determined pursuant to the definition thereof, (B) by reason of any changes arising on or after the Closing Effective Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement the definitions of SOFR, Term SOFR, the Term SOFR Reference Rate or Adjusted Term SOFR or (C) for any reason in connection with any request for a SOFR Loan or a conversion thereto or a continuation thereof that Adjusted Term SOFR for any requested Interest Period with respect to a proposed SOFR Loan does not adequately and fairly reflect the cost to such SOFR Lenders of making and maintaining such Loan, and the Required Lenders have provided notice of such determination to the Administrative Agent; or
(ii) that a Change in Law occurring at any time, that such Lender or Issuing Bank time after the Effective Date shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender Lender, (B) subject any Recipient to any Tax (other than (i) Indemnified Taxes or Issuing Bank) Other Taxes indemnifiable under Section 5.4, or (2ii) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other circumstances adversely obligations, or its deposits, reserves, other liabilities or capital attributable thereto, or (C) impose on any Lender any other condition, cost or expense (in each case, other than Taxes) affecting this Agreement or SOFR Loans made by such Lender, which results in the availability cost to such Lender of Term SOFRmaking, converting into, continuing or maintaining SOFR Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by as a result of compliance by such Lender in good faith with any Change in Requirement of Law since the Closing Date, (or would conflict with any thereof such Requirement of Law not having the force of law but with which such even though the failure to comply therewith would not be unlawful) or that any Governmental Authority has asserted that it is unlawful for any Lender customarily compliesor its applicable lending office to make, maintain or has become impracticable as a result of a contingency occurring after fund SOFR Loans or to determine or charge interest based upon SOFR, the Closing Date that materially adversely affects the availability of Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR; then, and in each any such event, such Lender or Issuing Bank Lenders (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than fifteen (15) days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) hereto and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawapplicable Requirements of Law.
(b) At any time that any SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans ) or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one three (3) U.S. Government Securities Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is are affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Effective Date, any Change in Law regarding relating to capital adequacy or liquidity by requirements of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having requirements occurring after the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Effective Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and liquidityor liquidity requirements), then from time to time, within 15 days promptly (but in any event no later than fifteen (15) days) after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any applicable Requirement of Law as in effect on the Effective Date. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-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 (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties heretohereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on that any date Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for determining any Lender or its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or to determine to charge interest rates based upon, SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, then, upon notice thereof by such Lender to the Borrower (through the Adminstrative Agent), (a) any obligation of the Lenders to make Term SOFR Loans, and any right of the Borrower to continue Term SOFR Loans or to convert Base Rate Loans to Term SOFR Loans, shall be suspended, and (b) the interest rate applicable on which Base Rate Loans shall, if necessary to any SOFR Loan for any Interest Period thatavoid such illegality, be determined by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; or
Administrative Agent shall be so determined without reference to clause (ii) at any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (dc) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including“Base Rate”, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (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) or (2) other circumstances adversely affecting the availability of Term SOFR; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of SOFR; then, and in each case until such event, such Lender or Issuing Bank (or Xxxxxx notifies the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give notice (by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing Banks). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice determination no longer exist. Upon receipt of such notice, (i) the Borrower shall, if necessary to avoid such illegality, upon demand from any Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Term SOFR Loans to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent shall be so determined without reference to clause (c) of the definition of “Base Rate”), on the last day of the Interest Period therefor, if all affected Lenders may lawfully continue to maintain such Term SOFR Loans to such day, or immediately, if any Lender may not lawfully continue to maintain such Term SOFR Loans to such day, and (ii) if necessary to avoid such illegality, the Administrative Agent shall during the period of such suspension compute the Base Rate without reference to clause (c) of the definition of “Base Rate,” in each case until the Administrative Agent is advised in writing by each affected Lender that it is no longer existillegal for such Lender to determine or charge interest rates based upon SOFR, and the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR. Upon any Notice of Borrowing such prepayment or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(ii) aboveconversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to this Section 2.10. Each Lender agrees to use reasonable efforts consistent with legal and regulatory requirements to designate a different Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be disadvantageous to such Lender or Issuing Bankcost any additional amount ; or
(ii) if, on or prior to the first day of any Interest Period for any Term SOFR Loan (a) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Adjusted Term SOFR” cannot be determined pursuant to the definition thereof, or (b) the Required Lenders determine that for any reason in connection with any request for a Term SOFR Loan or a conversion thereto or a continuation thereof that Adjusted Term SOFR for any requested Interest Period does not adequately and fairly reflect the cost to such Lenders of funding such Loan, and the Required Lenders have provided notice of such determination to the Administrative Agent, the Administrative Agent will promptly so notify the Borrower and each Lender. Upon such notice, any obligation of the Lenders to make Term SOFR Loans, and any right of the Borrower to continue Term SOFR Loans or to convert Base Rate Loans to Term SOFR Loans, shall be suspended (to the extent of the affected Term SOFR Loans or affected Interest Periods) until the Administrative Agent (with respect to clause (b), at the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, (i) the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of Term SOFR Loans (to the extent of the affected Term SOFR Loans or affected Interest Periods) or, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans in the amount specified therein and (ii) any outstanding affected Term SOFR Loans will be deemed to have been converted into Base Rate Loans at the end of the applicable Interest Period. Upon any such conversion, the Borrower shall also pay accrued interest on the amount so converted, together with any additional amounts required pursuant to Section 2.11. Subject to Section 2.10(d), if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Adjusted Term SOFR” cannot be determined pursuant to the definition thereof on any given day, the interest rate on Base Rate Loans shall be determined by the Administrative Agent without reference to clause (c) of the definition of “Base Rate” until the Agent revokes such determination;
(b) If any Lender determines that after the Effective Date (or the date 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 Authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Lender or any corporation controlling such Lender based on the existence of such Xxxxxx’s Revolving Loan Commitment hereunder or its obligations hereunder, then the Borrowers jointly and severally agree to pay to such Lender, 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 Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank such other corporation for such the increased costs or reductions in amounts receivable hereunder (a written notice as to the additional amounts owed cost to such Lender or Issuing Bank, showing such other corporation or the basis for reduction in the calculation thereof, which basis must be reasonable, submitted rate of return to the Borrower by such Lender or Issuing Bank such other corporation as a result of such increase of capital. In determining such additional amounts, each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable; provided, that such Xxxxxx’s determination of compensation owing under this Section 2.10(c) shall, absent manifest error, be final and conclusive and binding upon on all the parties hereto) and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporation’s capital or assets as a consequence of such Xxxxxx’s commitments or obligations hereunder to 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 and liquidity), then from time to time, within 15 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the BorrowerCompany, which notice shall set forth, show in reasonable detail, detail the basis of the for calculation of such additional amountsamounts provided, which basis must further, 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 reasonabledeemed to be a change after the Effective Date in a requirement of law or government rule, although regulation or order, regardless of the failure to give any such notice date enacted, adopted, issued or implemented (including for purposes of this Section 2.10).
(c) It is understood that this Section 2.10 shall not release apply to Excluded Taxes or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c) upon the subsequent receipt of such noticeIndemnified Taxes.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction EventReplacement Setting; Conforming Changes.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Samples: Abl Credit Agreement (J.Jill, Inc.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank the Required Lenders shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any LIBOR Rate and/or Adjusted Term SOFR Loan Rate for any Interest Period that, that (x) deposits in the principal amounts and currencies of the Loans comprising the applicable Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the interbank LIBOR or SOFR market (as applicable), adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such the definition of LIBOR Rate or Term SOFR LoanRate, as applicable; or
(ii) at any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any LIBOR Loans or Term SOFR Loans (other than any increased cost increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any attributable to (Ai) Indemnified TaxesTaxes and Taxes indemnifiable under Section 5.4, (Bii) net income Taxes and franchise and excise Taxes (imposed in lieu of net income Taxes) imposed on any Agent or Lender or (iii) Taxes described in included under clauses (bc) through (df) of the definition of “Excluded Taxes and (C) Connection Income Taxes”) because of (1x) any Change in Law change since the Closing Date in any Applicable Law (includingor in the interpretation or administration thereof and including the introduction of any new Applicable Law), but not limited tosuch as, for example, without limitation, a change in requirements for any reserveofficial reserve requirements, special deposit, liquidity or similar requirements and/or (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) or (2y) other circumstances adversely affecting the availability interbank LIBOR market or SOFR market, as applicable, or the position of Term SOFRsuch Lender in such market; or
(iii) at any time, that the making or continuance of any LIBOR Loan or Term SOFR Loan Loans, as applicable has become unlawful by as a result of compliance by such Lender in good faith with any Change in Applicable Law since the Closing Date, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRinterbank LIBOR market or SOFR market, as applicable; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of LIBOR Loans or Term SOFR Loans Loans, as applicable, shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of LIBOR Loans or Term SOFR Loans Loans, as applicable, that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(ii) above, the Borrower shall pay to such Lender or Issuing Bank, upon 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 Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporation’s capital or assets as a consequence of such Xxxxxx’s commitments or obligations hereunder to 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 and liquidity), then from time to time, within 15 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, in reasonable detail, the basis of the calculation of such additional amounts, which basis must be reasonable, 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 5.01(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.applicable,
Appears in 1 contract
Samples: Credit Agreement (Vistra Corp.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent Required Lenders or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan Eurodollar Rate for any Interest Period that, that (x) deposits in the principal amounts of the Loans comprising any Eurodollar Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of Eurodollar Rate; or
(ii) at any timethat, that such Lender or Issuing Bank due to a Change in Law, which shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender; (B) subject any Lender or Issuing Bankto any tax (other than (1) taxes indemnified under Section 5.4, (2) taxes described in clause (A), (B) or (2C) of Section 5.4(a) or (3) taxes described in clause (f) of Section 5.4) on its loans, letters of credits, commitments or other circumstances adversely obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (C) impose on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender, which results in the availability cost to such Lender of Term SOFRmaking, converting into, continuing or maintaining Eurodollar Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) at any time, time after the Closing Date that the making or continuance of any SOFR Eurodollar Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing DateApplicable Law, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRinterbank Eurodollar market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Required Lenders, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent Required Lenders no longer exist (which notice the Required Lenders agree to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of SOFR Eurodollar Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than 10 Business Days) after 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 Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawApplicable Law.
(ba) At any time that any SOFR Eurodollar Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Eurodollar Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if the affected SOFR Eurodollar Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(iiý2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected SOFR Eurodollar Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR Eurodollar Loan into an ABR Loan, if applicable; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(cb) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Daterequirements, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s capital or assets as a consequence of such XxxxxxLender’s or Letter of Credit Issuer’s commitments or obligations hereunder to a level below that which such Lender or its Letter of Credit Issuer or their respective parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 days promptly (but no later than 10 Business Days) after written demand by such Lender or Letter of Credit Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer such additional amount or amounts as will compensate such Lender or its Letter of Credit Issuer or their respective parent corporation for such reduction, it being understood and agreed, however, that a Lender or Letter of Credit Issuer shall not be entitled to such compensation as a result of such Lender’s or Letter of Credit Issuer’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the Closing Date except as a result of a Change in Law. Each LenderLender or Letter of Credit Issuer, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, Borrower (on its own behalf) which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(c) This Section 2.10 shall not apply to taxes to the extent duplicative of Section 5.4.
(d) The agreements in this Section 2.10 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(e) Notwithstanding the foregoing, no Lender or Letter of Credit Issuer shall be entitled to seek compensation under this Section 2.10 based on the provisions occurrence of Section 3.01(a) shall apply a Change in Law arising solely from the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or any requests, rules, guidelines or directives thereunder or issued in connection therewith, unless such Lender or Letter of Credit Issuer is generally seeking compensation from other borrowers in the U.S. leveraged loan market with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant its similarly affected commitments, loans and/or participations under agreements with such borrowers having provisions similar to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof2.10.
Appears in 1 contract
Samples: Third Amendment, Extension and Incremental Assumption Agreement (LPL Financial Holdings Inc.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; or
(ii) at any time, after the later of the Restatement Date and the date such entity became a Lender hereunder, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to the Loans, including as a result of any SOFR Loans Tax (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (Ax) Indemnified Taxes, (By) Taxes described in clauses (b) through (de) of the definition of “Excluded Taxes and Taxes” or (Cz) Connection Income Taxes) because of (1) any Change in Law change since the Closing Restatement Date in any Applicable Law (includingor in the interpretation or administration thereof and including the introduction of any new Applicable Law), but not limited tosuch as, for example, without limitation, a change in requirements for any reserve, special deposit, liquidity or similar official reserve requirements (including any compulsory loan requirementbut excluding changes in the rate of tax on the overall net income of such Lender), insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender or Issuing Bank) or (2) other circumstances adversely affecting the availability of Term SOFR; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of SOFR; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(ii) aboveThereafter, the Borrower shall pay to such Lender or Issuing BankLender, upon within ten (10) Business Days after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law).
(b) At any time that any SOFR Loan is affected by If, after the circumstances described in Section 5.01(a)(ii) or (iii)later of the Restatement Date and the date such entity becomes a Lender hereunder, the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case adoption of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Applicable Law regarding capital adequacy adequacy, or liquidity any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such a Lender or its parent corporation with any request or directive made or adopted after such date regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, association, central bank, bank or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to 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 corporationparent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 ten (10) days after receipt of written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the Restatement Date. Each LenderLender (on its own behalf), upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(b), will will, as promptly as practicable upon ascertaining knowledge thereof, give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts. Without limiting Section 2.10(d) below, which basis must be reasonable, although the failure to give any such notice with respect to a particular event shall not release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(b) upon for amounts accrued or incurred after the subsequent receipt date of such noticenotice with respect to such event. Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all rules, regulations, orders, requests, guidelines or directives 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 or foreign regulatory authorities, in each case pursuant to Basel III, in each case, are deemed to have been adopted and to have taken effect after the Restatement Date.
(dc) Notwithstanding This Section 2.10 shall not apply to any demand (i) made after the foregoing, 180th day following the requesting Xxxxxx’s knowledge that it would be entitled to any such amounts or (ii) not demanded of other borrowers having similar provisions of to this Section 3.01(a) shall apply with respect to a Benchmark Transaction Event2.10.
(ei) Failure or delay on the part of If any Lender shall give notice to the Borrower that such Lender is entitled to receive and is requesting payments under this Section 2.10 or Issuing Bank requires the Borrower to demand compensation pay additional amounts pursuant to this Section 5.01 4.04 (any such Lender, an “Increased Cost Lender”), then the Borrower may, after (solely in the case of an Increased Cost Lender) giving such Increased Cost Lender an opportunity to mitigate pursuant to Section 2.02, if applicable, at its sole expense and effort, permanently replace such Increased Cost Lender with one or more substitute Lenders reasonably acceptable to the Administrative Agent (each, a “Replacement Lender”), and such Increased Cost Lender shall have no right to refuse to be replaced hereunder. Such notice to replace the Increased Cost Lender shall specify an effective date for such replacement, which date shall not constitute a waiver of be sooner than five (5) Business Days and not be later than ten (10) Business Days after the date such Lender’s or Issuing Bank’s right to demand such compensation; notice is given, provided that (i) such Increased Cost Lender shall have received payment of an amount equal to the outstanding Obligations payable to it from the assignee (to the extent of outstanding principal and accrued interests and fees) or the Borrower (in the case of all other amounts) and (ii) such assignment does not conflict with Applicable Law. Notwithstanding anything to the contrary herein, a Lender shall not be required to compensate a Lender or Issuing Bank make any such assignment pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days 2.10(d) if, prior to the effective date that for such replacement, as a result of a waiver by such Lender or Issuing Bankotherwise, as the case may be, notifies circumstances entitling the Borrower to require such assignment pursuant to this Section 2.10(d) cease to apply.
(ii) Prior to the effective date of such replacement, the Increased Cost Lender and each Replacement Lender shall execute and deliver an Assignment and Acceptance, subject only to the Increased Cost Lender being repaid all Obligations owed to it through the effective date of the Change in Law giving rise replacement. If the Increased Cost Lender shall refuse or fail to execute and deliver any such increased costs or reductions Assignment and Acceptance prior to the effective date of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further thatreplacement, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above Increased Cost Lender shall be extended deemed to include have executed and delivered such Assignment and Acceptance. The replacement of any Increased Cost Lender shall be made in accordance with the period terms of retroactive effect thereofSection 12.06.
Appears in 1 contract
Samples: Credit Agreement
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or and (y) in the case of Sections 5.01(a)(iiclauses (ii) and through (iiiiv) below, any Lender the Required Term Lenders (with respect to Term Loans) or Issuing Bank the Required Revolving Credit Lenders (with respect to Revolving Credit Commitments), or, with respect to the Term Loans and Revolving Credit Commitments, the Required Lenders) shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) i. on any date for determining the interest rate applicable to any SOFR Loan Adjusted LIBOR Rate for any Interest Period that, that (x) deposits in the principal amounts and currencies of the Loans comprising such LIBOR Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the interbank LIBOR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of Adjusted LIBOR Rate; or
(ii) . at any time, that such Lender or Issuing Bank Lenders shall incur Incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR LIBOR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate with respect to Taxes) because of any Change in Law; iii. that, due to a Change in Law, which shall subject any such Lenders to any Tax (Aother than (1) Indemnified Taxes, (B2) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and or (C3) Connection Income Other Taxes) because on its loans, loan principal, letters of (1) any Change in Law since the Closing Date (includingcredit, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirement, insurance charge commitments or other assessment) against assets of, deposits with or for the account ofobligations, or credit extended byits deposits, any Lender reserves, or Issuing Bank) other liabilities or (2) other circumstances adversely affecting the availability of Term SOFRcapital attributable thereto; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of SOFR; then, and in each such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give notice (by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing Banks). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(ii) above, the Borrower shall pay to such Lender or Issuing Bank, upon 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 Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporation’s capital or assets as a consequence of such Xxxxxx’s commitments or obligations hereunder to 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 and liquidity), then from time to time, within 15 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, in reasonable detail, the basis of the calculation of such additional amounts, which basis must be reasonable, 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 5.01(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Samples: Credit Agreement (Carbonite Inc)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of due to a Change in Law occurring at any changes arising time on or after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for which Change in this Agreement for such SOFR Loan; or
(ii) at any time, that such Lender or Issuing Bank Law shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, (B) subject any Lender to any Tax with respect to any Credit Document, any LIBOR Loan made by it, Letters of Credit, Commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, or (C) impose on any Lender or Issuing Bankthe London interbank market any other condition, cost or expense affecting this Agreement or LIBOR Loans made by such Lender, which results in (x) an increase in the cost to such Lender of making, converting into, continuing or maintaining Loans or participating in Letters of Credit (in each case hereunder) by an amount which such Lender in its sole discretion deems material or (2y) other circumstances adversely affecting a reduction in the availability of Term SOFRamounts received or receivable by such Lender hereunder with respect to the foregoing; or
(iiiii) at any time, that the making or continuance of any SOFR LIBOR Loan has become unlawful by as a result of compliance by such Lender in good faith with any Change in Requirement of Law since the Closing Date, (or would conflict with any thereof such Requirement of Law not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after even though the Closing Date that materially adversely affects the availability of SOFRfailure to comply therewith would not be unlawful); then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) Lenders shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, clause (y) in the case of Section 5.01(a)(iii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than fifteen days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (zy) in the case of Section 5.01(a)(iiiclause (ii) above, the Borrower shall take one of the actions specified in Section 5.01(b) 2.10(b), as promptly as possible and, in any event, within the time period required by lawapplicable Requirements of Law.
(b) At any time that any SOFR LIBOR Loan is affected by the circumstances described in Section 5.01(a)(ii2.1(a)(i) or (iiiSection 2.10(a)(ii), the Borrower may (and in the case of a SOFR LIBOR Loan affected pursuant to Section 5.01(a)(iii2.1(a)(ii) the Borrower shall) either (i) if the affected SOFR LIBOR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(i) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, Section 2.10(a)(ii) or (ii) if the affected SOFR LIBOR Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by requirements of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to requirements occurring after the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and liquidityor liquidity requirements), then from time to time, within 15 days promptly (but in any event no later than fifteen days) after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any applicable Requirement of Law as in effect on the Closing Date (except as otherwise set forth in the definition of Change in Law). Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Samples: Credit Agreement (Denbury Inc)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Datedue to a Change in Law, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; or
(ii) at any time, that such Lender or Issuing Bank which shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender; (B) subject any Lender or Issuing Bankto any tax (other than (1) taxes indemnified under Section 5.4, (2) taxes described in clause (A), (B) or (2C) of Section 5.4(a) or (3) taxes described in clause (f) of Section 5.4) on its loans, letters of credits, commitments or other circumstances adversely obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (C) impose on any Lender or any applicable interbank market any other condition, cost or expense affecting this Agreement or Term SOFR Rate Loans made by such Lender, which results in the availability cost to such Lender of making, converting into, continuing or maintaining Term SOFRSOFR Rate Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iiiii) at any time, time after the Effective Date that the making or continuance of any Term SOFR Rate Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing DateApplicable Law, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Effective Date that materially and adversely affects the availability of SOFRapplicable interbank market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, clause (y) in the case of Section 5.01(a)(iii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than 10 Business Days) after 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 Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (zy) in the case of Section 5.01(a)(iiiclause (ii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawApplicable Law.
(b) At any time that any Term SOFR Rate Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii2.10(a), the Borrower may (and in the case of a Term SOFR Rate Loan affected pursuant to Section 5.01(a)(iii2.10(a)(ii) the Borrower shall) either (ix) if the affected Term SOFR Rate Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (iiy) if the affected Term SOFR Rate Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such Term SOFR Rate Loan into an ABR Loan, if applicable; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Daterequirements, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s capital or assets as a consequence of such XxxxxxLender’s or Letter of Credit Issuer’s commitments or obligations hereunder to a level below that which such Lender or its Letter of Credit Issuer or their respective parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s policies with respect to capital adequacy and liquidity), then from time to time, within 15 days promptly (but no later than 10 Business Days) after written demand by such Lender or Letter of Credit Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer such additional amount or amounts as will compensate such Lender or its Letter of Credit Issuer or their respective parent corporation for such reduction, it being understood and agreed, however, that a Lender or Letter of Credit Issuer shall not be entitled to such compensation as a result of such Lender’s or Letter of Credit Issuer’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the Effective Date except as a result of a Change in Law. Each LenderLender or Letter of Credit Issuer, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, Borrower (on its own behalf) which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding If prior to the foregoingcommencement of any Interest Period for a Term SOFR Rate Loan:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted Term SOFR Rate (including, without limitation, because the provisions Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; or
(ii) the Administrative Agent is advised by the Required Lenders that the Adjusted Term SOFR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of Section 3.01(amaking or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period; then the Administrative Agent shall apply with respect give notice thereof to the Borrower and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (A) any Notice of Conversion or Continuation that requests the conversion of any Loan to, or continuation of any Loan as, a Benchmark Transaction EventTerm SOFR Rate Loan shall be ineffective and (B) if any Notice of Borrowing requests Revolving Credit Loans as Term SOFR Rate Loans, such Borrowing shall be made as ABR Loans; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then all other Types of Borrowings shall be permitted.
(e) Failure If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in Section 2.10(d)(i) have arisen and such circumstances are unlikely to be temporary or delay (ii) the circumstances set forth in Section 2.10(d)(i) have not arisen but the supervisor for the administrator of the Term SOFR Reference Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the Term SOFR Reference Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the Adjusted Term SOFR Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable. Notwithstanding anything to the contrary in Section 13.1, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders of each Class stating that such Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (e) (but, in the case of the circumstances described in clause (ii) of the first sentence of this Section 2.10(e), only to the extent the Term SOFR Reference Rate for such Interest Period is not available or published at such time on a current basis), (x) any Notice of Conversion or Continuation that requests the conversion of any Loans to, or continuation of any Loans as, Term SOFR Rate Loans shall be ineffective, and (y) if any Notice of Borrowing requests Revolving Credit Loans as Term SOFR Rate Loans, such Borrowing shall be made as ABR Loans; provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
(f) This Section 2.10 shall not apply to taxes to the extent duplicative of Section 5.4.
(g) The agreements in this Section 2.10 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(h) Notwithstanding the foregoing, no Lender or Letter of Credit Issuer shall be entitled to seek compensation under this Section 2.10 based on the part occurrence of a Change in Law arising solely from the Dodd-Frank Wall Street Reform and Consumer Protection Act or any requests, rules, guidelines or directives thereunder or issued in connection therewith, unless such Lender or Issuing Bank Letter of Credit Issuer is generally seeking compensation from other borrowers in the U.S. leveraged loan market with respect to demand compensation pursuant its similarly affected commitments, loans and/or participations under agreements with such borrowers having provisions similar to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof2.10.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; or
(ii) at any time, after the later of the Closing Date and the date such entity became a Lender hereunder, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to the Loans, including as a result of any SOFR Loans Tax (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (Ax) Indemnified Taxes, (By) Taxes described in clauses (b) through (de) of the definition of “Excluded Taxes and Taxes” or (Cz) Connection Income Taxes) because of (1) any Change in Law change since the Closing Date in any Applicable Law (includingor in the interpretation or administration thereof and including the introduction of any new Applicable Law), but not limited tosuch as, for example, without limitation, a change in requirements for any reserve, special deposit, liquidity or similar official reserve requirements (including any compulsory loan requirementbut excluding changes in the rate of tax on the overall net income of such Lender), insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender or Issuing Bank) or (2) other circumstances adversely affecting the availability of Term SOFR; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of SOFR; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give notice (if by telephone telephone, confirmed in writing) to the Borrower Parent and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) aboveThereafter, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(ii) above, the Borrower Borrowers shall pay to such Lender or Issuing BankLender, upon within 10 Business Days after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower Parent by such Lender or Issuing Bank shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law).
(b) At any time that any SOFR Loan is affected by If, after the circumstances described in Section 5.01(a)(ii) or (iii)later of the Closing Date and the date such entity becomes a Lender hereunder, the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case adoption of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Applicable Law regarding capital adequacy adequacy, or liquidity any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such a Lender or its parent corporation with any request or directive made or adopted after such date regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, association, central bank, bank or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to 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 corporationparent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 10 days after receipt of written demand by such Lender (with a copy to the Administrative Agent), the Borrower Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the Closing Date. Each LenderLender (on its own behalf), upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.09(b), will will, as promptly as practicable upon ascertaining knowledge thereof, give prompt written notice thereof to the BorrowerParent, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts. Without limiting Section 12.06(e), which basis must be reasonable, although the failure to give any such notice with respect to a particular event shall not release or diminish any of the Borrower’s Borrowers’ obligations to pay additional amounts pursuant to this Section 5.01(c2.09(b) upon for amounts accrued or incurred after the subsequent receipt date of such noticenotice with respect to such event. Notwithstanding anything herein to the contrary, (x) the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act and all rules, regulations, orders, requests, guidelines or directives 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 or foreign regulatory authorities, in each case pursuant to Basel III, in each case, are deemed to have been adopted and to have taken effect after the Closing Date.
(dc) Notwithstanding This Section 2.09 shall not apply to any demand (i) made after the foregoing, 180th day following the requesting Lxxxxx’s knowledge that it would be entitled to any such amounts or (ii) not demanded of other borrowers having similar provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof2.09.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank Lender, shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan LIBOR Rate for any Interest Period that, that (A) deposits in the principal amounts of the Loans comprising such LIBOR Advances are not generally available in the relevant market or (B) by reason of any changes arising on or after the Closing DateEffective Date affecting the interbank LIBOR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of LIBOR Rate; or
(ii) that, due to a Change in Law occurring at any timetime after the Effective Date, that such Lender or Issuing Bank which Change in Law shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, (B) subject any Lender to any Tax with respect to any Credit Document or Issuing Bankany LIBOR Loan made by it (other than (1) Taxes indemnifiable under Section 5.4, or (2) Excluded Taxes), or (C) impose on any Lender or the London interbank market any other circumstances adversely condition, cost or expense affecting this Agreement or LIBOR Loans made by such Lender, which results in the availability cost to such Lender of Term SOFRmaking, converting into, continuing or maintaining LIBOR Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) at any time, that the making or continuance of any SOFR LIBOR Loan has become unlawful by as a result of compliance by such Lender in good faith with any Change in Requirement of Law since the Closing Date, (or would conflict with any thereof such Requirement of Law not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after even though the Closing Date that materially adversely affects the availability of SOFRfailure to comply therewith would not be unlawful); then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR LIBOR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of SOFR LIBOR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than thirty (30) days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.9(b) as promptly as possible and, in any event, within the time period required by lawapplicable Requirements of Law.
(b) At any time that any SOFR LIBOR Loan is affected by the circumstances described in Section 5.01(a)(ii2.9(a)(ii) or (iii), the Borrower may (and in the case of a SOFR LIBOR Loan affected pursuant to Section 5.01(a)(iii2.9(a)(iii) the Borrower shall) either (i) if the affected SOFR LIBOR Loan is then being made pursuant to a Borrowingan Advance, cancel such Advance by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.9(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (ii) if the affected SOFR LIBOR Loan is then outstanding, upon at least one three (3) Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.9(b).
(c) If any Lender shall have determined that If, after the Closing Effective Date, any Change in Law regarding relating to capital adequacy or liquidity by requirements of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having requirements occurring after the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, Effective Date has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and liquidityor liquidity requirements), then from time to time, within 15 days promptly (but in any event no later than fifteen (15) days) after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any applicable Requirement of Law as in effect on the Effective Date. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.9(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.12, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.9(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-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 (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank Lender, shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; or[Reserved]
(ii) at any timethat, that such Lender or Issuing Bank due to a Change in Law, which shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender; (B) subject any Lender or Issuing Bankto any Tax (other than (1) or Taxes indemnifiable under Section 5.4, (2) Excluded Taxes or (3) Taxes described in Section 5.4(f)) on its loans, loan principal, letters of credits, commitments or other circumstances adversely obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (C) impose on any Lender or the London interbank eurocurrency market any other condition, cost or expense affecting this Agreement, which results in the availability cost to such Lender of Term SOFRparticipating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of SOFR[Reserved]; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give written notice (by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, clause (y) in the case of Section 5.01(a)(iiii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than ten Business Days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawApplicable Law.
(b) At any time that any SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b).[Reserved]
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, requirements has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationIssuing Lender’s or their respective parent’s capital or assets as a consequence of such XxxxxxLender’s or Issuing Lender’s commitments or obligations hereunder to a level below that which such Lender or its Issuing Lender or their respective parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationIssuing Lender’s or their respective parent’s policies with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly (but no later than ten Business Days) after written demand by such Lender or Issuing Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Issuing Lender such additional amount or amounts as will compensate such Lender or its Issuing Lender or their respective parent corporation for such reduction, it being understood and agreed, however, that a Lender or Issuing Lender shall not be entitled to such compensation as a result of such Lender’s or Issuing Lender’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the Restatement Agreement Effective Date except as a result of a Change in Law. Each Lender or Issuing Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, Borrower (on its own behalf) which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding The agreements in this Section 2.10 shall survive the foregoing, termination of this Agreement and the provisions payment of Section 3.01(a) shall apply with respect to a Benchmark Transaction Eventthe Loans and all other amounts payable hereunder.
(e) Failure or delay on Notwithstanding the part of any foregoing, no Lender or Issuing Bank Lender shall be entitled to demand seek compensation pursuant to under this Section 5.01 shall not constitute 2.10 based on the occurrence of a waiver of such Lender’s Change in Law arising solely from (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender any requests, rules, guidelines or Issuing Bank pursuant to this Section 5.01 for directives thereunder or issued in connection therewith or (y) Basel III or any increased costs requests, rules, guidelines or reductions incurred more than 270 days prior to the date that directives thereunder or issued in connection therewith, unless such Lender or Issuing BankLender is generally seeking compensation from other borrowers in the U.S. leveraged loan market with respect to its similarly affected commitments, as the case may be, notifies the Borrower of the Change in Law giving rise loans and/or participations under agreements with such borrowers having provisions similar to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereofthis Section 2.10.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of due to a Change in Law occurring at any changes arising time or after the Closing Effective Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for which Change in this Agreement for such SOFR Loan; or
(ii) at any time, that such Lender or Issuing Bank Law shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, (B) subject any Lender to any Tax with respect to any Credit Document or any LIBOR Loan made by it (other than (i) Taxes indemnifiable under Section 5.4, or (ii) Excluded Taxes), or (C) impose on any Lender or Issuing Bank) the London interbank market any other condition, cost or (2) other circumstances adversely expense affecting this Agreement or LIBOR Loans made by such Lender, which results in the availability cost to such Lender of Term SOFRmaking, converting into, continuing or maintaining LIBOR Loans hereunder increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iiiii) at any time, that the making or continuance of any SOFR LIBOR Loan has become unlawful by as a result of compliance by such Lender in good faith with any Change in Requirement of Law since the Closing Date, (or would conflict with any thereof such Requirement of Law not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after even though the Closing Date that materially adversely affects the availability of SOFRfailure to comply therewith would not be unlawful); then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) Lenders shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give written notice (by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, clause (y) in the case of Section 5.01(a)(iii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than fifteen days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (zy) in the case of Section 5.01(a)(iiiclause (ii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.11(b) as promptly as possible and, in any event, within the time period required by lawapplicable Requirements of Law.
(b) At any time that any SOFR LIBOR Loan is affected by the circumstances described in Section 5.01(a)(ii2.11(a)(i) or (iiiii), the Borrower may (and in the case of a SOFR LIBOR Loan affected pursuant to Section 5.01(a)(iii2.11(a)(ii) the Borrower shall) either (i) if the affected SOFR LIBOR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.11(a)(i) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR LIBOR Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.11(b).
(c) If any Lender shall have determined that If, after the Closing Effective Date, any Change in Law regarding relating to capital adequacy or liquidity by requirements of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having requirements occurring after the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Effective Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and liquidityor liquidity requirements), then from time to time, within 15 days promptly (but in any event no later than fifteen (15) days) after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any applicable Requirement of Law as in effect on the Effective Date (except as otherwise set forth in the definition of Change in Law). Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.11(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.14, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.11(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-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 (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank Lender, in each case, shall have determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):reasonably determined:
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan[reserved]; or
(ii) at any time, time that a Change in Law causes such Lender or Issuing Bank shall to incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material (other than lost profit) with respect to any SOFR LIBOR Rate Loans (other than any increased cost such increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of attributable to Excluded Taxes and (C) Connection Income or Non-Excluded Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (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) or (2) other circumstances adversely affecting the availability of Term SOFR); or
(iii) at any time, that the making or continuance of any SOFR LIBOR Rate Loan has become unlawful by compliance by such Lender in good faith with any (A) due to a Change in Law, unlawful under any Applicable Law since the Closing Date, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become (B) impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFR; London interbank market, then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give written notice (by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (xA) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, clause (y) in the case of Section 5.01(a)(iiii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon within five (5) days after 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 Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (zB) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any SOFR LIBOR Rate Loan is affected by the circumstances described in (i) Section 5.01(a)(ii) or (iii2.10(a)(ii), the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (iA) if the affected SOFR LIBOR Rate Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (iiB) if the affected SOFR LIBOR Rate Loan is then outstanding, upon at least one three (3) Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Rate Loan into an ABR LoanIndex Rate Loan at the end of the applicable LIBOR Period for such LIBOR Rate Loans; provided, however, that if more than one (1) Lender is so affected at any time, then all affected Lenders must be treated in the same manner pursuant to this Section 2.10(b) or Issuing Bank (ii) Section 2.10(a)(iii), (A) if the affected LIBOR Rate Loan is then being made pursuant to a Borrowing, such Borrowing shall automatically be deemed cancelled and rescinded and (B) if the affected LIBOR Rate Loan is then outstanding, each such LIBOR Rate Loan shall automatically be converted into an Index Rate Loan at the end of the applicable LIBOR Period for such LIBOR Rate Loans; provided, that if more than one (1) Lender is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the later of the Closing Date, and the date such entity becomes a Lender hereunder, the adoption of any Change in Applicable Law regarding capital adequacy adequacy, or liquidity any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such a Lender or its parent corporation with any request or directive made or adopted after such date regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, association, central bank, bank or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to 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 corporationparent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, in reasonable detail, the basis of the calculation of such additional amounts, which basis must be reasonable, 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 5.01(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.five
Appears in 1 contract
Samples: Credit Agreement
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank Lender, shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan LIBOR Rate for any Interest Period that, that (A) deposits in the principal amounts of the Loans comprising such LIBOR Advances are not generally available in the relevant market or (B) by reason of any changes arising on or after the Closing DateEffective Date affecting the interbank LIBOR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of LIBOR Rate; or
(ii) that, due to a Change in Law occurring at any timetime after the Effective Date, that such Lender or Issuing Bank which Change in Law shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, (B) subject any Lender to any Tax with respect to any Credit Document or Issuing Bankany LIBOR Loan made by it (other than (1) Taxes indemnifiable under Section 5.4, or (2) Excluded Taxes), or (C) impose on any Lender or the London interbank market any other circumstances adversely condition, cost or expense affecting this Agreement or LIBOR Loans made by such Lender, which results in the availability cost to such Lender of Term SOFRmaking, converting into, continuing or maintaining LIBOR Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) at any time, that the making or continuance of any SOFR LIBOR Loan has become unlawful by as a result of compliance by such Lender in good faith with any Change in Requirement of Law since the Closing Date, (or would conflict with any thereof such Requirement of Law not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after even though the Closing Date that materially adversely affects the availability of SOFRfailure to comply therewith would not be unlawful); then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR LIBOR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of SOFR LIBOR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than thirty (30) days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.9(b) as promptly as possible and, in any event, within the time period required by lawapplicable Requirements of Law.
(b) At any time that any SOFR LIBOR Loan is affected by the circumstances described in Section 5.01(a)(ii2.9(a)(ii) or (iii), the Borrower may (and in the case of a SOFR LIBOR Loan affected pursuant to Section 5.01(a)(iii2.9(a)(iii) the Borrower shall) either (i) if the affected SOFR LIBOR Loan is then being made pursuant to a Borrowingan Advance, cancel such Advance by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.9(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (ii) if the affected SOFR LIBOR Loan is then outstanding, upon at least one three (3) Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.9(b).
(c) If any Lender shall have determined that If, after the Closing Effective Date, any Change in Law regarding relating to capital adequacy or liquidity by requirements of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having requirements occurring after the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, Effective Date has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and liquidityor liquidity requirements), then from time to time, within 15 days promptly (but in any event no later than fifteen (15) days) after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any applicable Requirement of Law as in effect on the Effective Date. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.9(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.12, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.9(c) upon the subsequent receipt of such notice.
(d) Notwithstanding In addition, if at any time the foregoing, Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the provisions of circumstances set forth in Section 3.01(a2.9 (a)(i) shall apply with respect have arisen and such circumstances are unlikely to a Benchmark Transaction Event.
be temporary or (eii) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to circumstances set forth in this Section 5.01 2.9 (a)(i) have not arisen but the supervisor for the administrator of the LIBOR Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBOR Rate shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall not be required endeavor to compensate establish an alternate rate of interest to the LIBOR Rate that gives due consideration to the then prevailing market convention for determining a Lender or Issuing Bank pursuant rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Section 5.01 Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for any increased costs or reductions incurred more than 270 days prior the avoidance of doubt, such related changes shall not include a reduction of the Applicable Margin). Notwithstanding anything to the contrary in Section 13.1, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five (5) Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise Required Lenders object to such increased costs amendment. Until an alternate rate of interest shall be determined in accordance with this paragraph, (x) any request to convert any Loan to, or reductions continue any Loan as, a LIBOR Loan shall be ineffective, and (y) if any Notice of Borrowing requests a LIBOR Loan, such Lender’s or Issuing Bank’s intention to claim compensation thereforLoan shall be made as an ABR Loan; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above alternate rate of interest shall be extended less than zero, such rate shall be deemed to include be zero for the period purposes of retroactive effect thereofthis Agreement.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or and (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender the Required Term Loan Lenders (with respect to Term Loans) or Issuing Bank the Required Revolving Credit Lenders (with respect to Revolving Credit Commitments) shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan LIBOR Rate for any Interest Period that, that (x) deposits in the principal amounts and currencies of the Loans comprising such LIBOR Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the interbank LIBOR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of LIBOR Rate; or
(ii) at any time, that such Lender or Issuing Bank Lenders shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR LIBOR Loans (including any increased costs or reductions attributable to Taxes, other than any increased cost increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) attributable to Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income or Other Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (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) or (2) other circumstances adversely affecting the availability of Term SOFRLaw; or
(iii) at any time, that the making or continuance of any SOFR LIBOR Loan has become unlawful by compliance by such Lender Lenders in good faith with any Change in Law since the Closing Datelaw, governmental rule, regulation, guideline or order (or would conflict with any thereof such governmental rule, regulation, guideline or order not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRinterbank LIBOR market; (such Loans, “Impacted Loans”), then, and in each any such event, such Lender Required Term Loan Lenders or Issuing Bank Required Revolving Credit Lenders, as applicable (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to Holdings, the Borrower Borrower, and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR LIBOR Loans shall no longer be available until such time as the Administrative Agent notifies Holdings, the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR LIBOR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLenders, upon promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender Required Term Loan Lenders or Issuing Bank Required Revolving Credit Lenders, as applicable, in their reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank Lenders for such actual increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLenders, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank Lenders shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) ), and (z) in the case of Section 5.01(a)(iiisubclause (iii) above, the Borrower shall take one of the actions specified in subclause (x) or (y), as applicable, of Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by law. Notwithstanding the foregoing, if the Administrative Agent has made the determination described in Section 2.10(a)(i)(x), the Administrative Agent, in consultation with the Borrower and the affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (x) of the first sentence of the immediately preceding paragraph, (2) the Administrative Agent or the affected Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (3) any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrower written notice thereof.
(b) At any time that any SOFR LIBOR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR LIBOR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if a Notice of Borrowing or Notice of Conversion or Continuation with respect to the affected SOFR LIBOR Loan is then being made has been submitted pursuant to a BorrowingSection 2.3 but the affected LIBOR Loan has not been funded or continued, cancel such requested Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank Lenders pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected SOFR LIBOR Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to occurring after the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the actual rate of return on such Lender’s or its parent corporationparent’s or its Affiliate’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation or its Affiliate could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such actual additional amount or amounts as will compensate such Lender or its parent corporation for such actual reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any law, rule or regulation as in effect on the Closing Date or to the extent such Lender is not imposing such charges on, or requesting such compensation from, borrowers (similarly situated to the Borrower hereunder) under comparable syndicated credit facilities similar to the Credit Facilities. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent promptly following receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to It is understood that this Section 5.01 2.10 shall not constitute a waiver of such Lender’s apply to (i) Taxes indemnifiable under Section 5.4 or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.(ii)
Appears in 1 contract
Samples: Credit Agreement (Visant Corp)
Increased Costs, Illegality, etc. (a) In the event that (x) If any Change in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have determined on a reasonable basis (which determination Law shall, absent manifest error, be final and conclusive and binding upon all parties hereto)::
(i) on any date for determining the interest rate impose, modify or deem applicable to any SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; or
(ii) at any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements 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 (except any such reserve requirement reflected in the Adjusted LIBO Rate);
(ii) impose on any Lender or Issuing Bank) the London interbank market any other condition affecting this Agreement or (2) other circumstances adversely affecting the availability of Term SOFREurodollar Loans made by such Lender or participation therein; or
(iii) at subject any timeRecipient to any Taxes on its loans, that loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto (other than (A) Indemnified Taxes, or (B) Excluded Taxes); and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making or continuance maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Eurodollar Loan) or to increase the cost to such Lender or to reduce the amount of any SOFR Loan has become unlawful by compliance sum received or receivable by such Lender in good faith with any Change in Law since or such other Recipient hereunder (whether of principal, interest or otherwise), then the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of SOFR; then, and in each such event, Borrower will pay to such Lender or Issuing Bank such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender determines that any 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 perform any of its obligations hereunder or to make, maintain or fund or charge interest with respect to any Credit Extension or to determine or charge interest rates based upon the LIBO Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (i) any obligation of such Lender to issue, make, maintain, fund or charge interest with respect to any such Eurodollar Loans or to convert ABR Term Loans to Eurodollar Loans shall be suspended and (ii) if such notice asserts the illegality of such Lender making or maintaining ABR Term Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Alternate Base Rate, the interest rate on such ABR Term Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent in without reference to the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days Eurodollar Rate component of the date on which Alternate Base Rate, in each case until such event no longer exists give notice (by telephone confirmed in writing) to the Borrower and to Lender notifies the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing Banks). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies and the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent determination no longer exist, and any Notice . Upon receipt of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowingnotice, (y) in the case of Section 5.01(a)(ii) above, the Borrower shall pay to such Lender or Issuing Bank, upon 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 Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iiix) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporation’s capital or assets as a consequence of such Xxxxxx’s commitments or obligations hereunder to 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 and liquidity), then demand from time to time, within 15 days after demand by such Lender (with a copy to the Administrative Agent), convert all Eurodollar Loans of such Lender to ABR Term Loans (the interest rate on which ABR Term Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Alternate Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, the Administrative Agent shall during the period of such suspension compute the Alternate Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so converted.
(c) If any Lender determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into account such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy or liquidity), then from time to time the Borrower will pay to such Lender Lender, as the case may be, such additional amount or amounts as will compensate such Lender or its parent corporation such Lender’s holding company for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, in reasonable detail, the basis of the calculation of such additional amounts, which basis must be reasonable, 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 5.01(c) upon the subsequent receipt of such noticereduction suffered.
(d) Notwithstanding A certificate of a Lender setting forth the foregoingamount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, as the case may be, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Eventamount shown as due on any such certificate within 10 business days after receipt thereof.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 180 days prior to the date that such Lender or Issuing BankLender, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270180-day period referred to above shall be extended to include the period of retroactive effect thereof.
(f) Notwithstanding the foregoing, no Lender shall be entitled to seek compensation under this Section 2.12 based on the occurrence of a Change in Law arising solely from (x) the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act or any requests, rules, guidelines or directives thereunder or issued in connection therewith or (y) Basel III or any requests, rules, guidelines or directives thereunder or issued in connection therewith, unless such Lender is generally seeking compensation from other borrowers in the U.S. leveraged loan market with respect to its similarly affected commitments, loans and/or participations under agreements with such borrowers having provisions similar to this Section 2.12.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent Required Lenders or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank Lender, shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan LIBOR Rate for any Interest Period that, prior to the earlier of (x) the occurrence of a Demand Failure Event and (y) the Interim Loan Conversion Date that (A) deposits in the principal amounts of the Senior Interim Loans comprising such LIBOR Borrowing are not generally available in the relevant market or (B) by reason of any changes arising on or after the Closing DateDate affecting the interbank LIBOR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of LIBOR Rate; or
(ii) that, due to a Change in Law occurring at any timetime or after the Closing Date and prior to the earlier of (x) the occurrence of a Demand Failure Event and (y) the Interim Loan Conversion Date, that such Lender or Issuing Bank which Change in Law shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, (B) subject any Lender to any Tax with respect to any Loan Document or any LIBOR Loan made by it (other than (i) Taxes indemnifiable under Section 5.4 or (ii) Excluded Taxes), or (C) impose on any Lender or Issuing Bankthe London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or (2) other circumstances adversely affecting LIBOR Loans made by such Lender, which results in the availability cost to such Lender of Term SOFRmaking, converting into, continuing or maintaining LIBOR Loans hereunder increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) at any timetime prior to the earlier of (x) the occurrence of a Demand Failure Event and (y) the Interim Loan Conversion Date, that the making or continuance of any SOFR LIBOR Loan has become unlawful by as a result of compliance by such Lender in good faith with any Change in Requirement of Law since the Closing Date, (or would conflict with any thereof such Requirement of Law not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after even though the Closing Date that materially adversely affects the availability of SOFRfailure to comply therewith would not be unlawful); then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR LIBOR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR LIBOR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than fifteen days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawapplicable Requirements of Law.
(b) At any time that any SOFR LIBOR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR LIBOR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (i) if the affected SOFR LIBOR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (ii) if the affected SOFR LIBOR Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Date and prior to the earlier of (x) the occurrence of a Demand Failure Event and (y) the Interim Loan Conversion Date, any Change in Law regarding relating to capital adequacy or liquidity by of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to occurring after the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 days promptly (but in any event no later than fifteen days) after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any applicable Requirement of Law as in effect on the Closing Date. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-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 (x) in the case of Section 5.01(a)(iclauses (i) and (iii) below, the Administrative Agent or and (y) in the case of Sections 5.01(a)(iiclauses (ii), (iii) and (iiiiv) below, any Lender or Issuing Bank Lender, as applicable, shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) that on any date for determining the interest rate applicable to any SOFR Loan Adjusted LIBOR Rate for any Interest Period that, (x) deposits in the principal amounts and currencies of the Loans comprising such LIBOR Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the interbank LIBOR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; orthe definition of Adjusted LIBOR Rate;
(ii) that at any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR LIBOR Loans other than with respect to Taxes because of any Change in Law;
(iii) that, due to a Change in Law such Lender or the Administrative Agent shall be subjected to to any Tax (other than any increased cost Indemnified Taxes or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because on its loans, loan principal, letters of (1) any Change in Law since the Closing Date (includingcredits, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirement, insurance charge commitments or other assessment) against assets of, deposits with or for the account ofobligations, or credit extended byits deposits, any Lender reserves, other liabilities or Issuing Bank) or (2) other circumstances adversely affecting the availability of Term SOFRcapital attributable thereto; or
(iiiiv) at any time, that the making or continuance of any SOFR LIBOR Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Datelaw, governmental rule, regulation, guideline or order (or would conflict with any thereof such governmental rule, regulation, guideline or order not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRinterbank LIBOR market; (such Loans, “Impacted Loans”), then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR LIBOR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of SOFR LIBOR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, and (y) in the case of Section 5.01(a)(iiclause (ii) or (iii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank Lender, in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such actual increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporation’s capital or assets as a consequence of such Xxxxxx’s commitments or obligations hereunder to 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 and liquidity), then from time to time, within 15 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, in reasonable detail, the basis of the calculation of such additional amounts, which basis must be reasonable, 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 5.01(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of the Administrative Agent or any Lender or Issuing Bank to demand compensation pursuant to the foregoing provisions of this Section 5.01 2.10(a) shall not constitute a waiver of the Administrative Agent’s or such Lender’s or Issuing Bank’s ’s, as the case may be, right to demand such compensation; provided that the Borrower shall not be required to compensate a the Administrative Agent or any Lender or Issuing Bank pursuant to the foregoing provisions of this Section 5.01 2.10(a) for any increased costs or reductions incurred if the Administrative Agent or such Lender, as the case may be, became aware (or reasonably should have been aware) of such increased costs or reductions more than 270 180 days prior to the date that the Administrative Agent or such Lender or Issuing BankLender, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of the Administrative Agent’s or such Lender’s or Issuing Bank’s ’s, as applicable, intention to claim compensation therefor. Notwithstanding the foregoing, if the Administrative Agent has made the determination described in Section 2.10(a)(i)(x), the Administrative Agent, in consultation with the Borrower and any affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (x) of the first sentence of the immediately preceding paragraph, (2) the Administrative Agent or the affected Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (3) any Lender determines that any law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrower written notice thereof.
(b) At any time that any LIBOR Loan is affected by the circumstances described in Section 2.10(a)(ii), the Borrower may either (x) if a Notice of Borrowing or Notice of Conversion or Continuation with respect to the affected LIBOR Loan has been submitted pursuant to Section 2.3 or Section 2.6 but the affected LIBOR Loan has not been funded or continued, cancel such requested Borrowing by giving the Administrative Agent written notice thereof on the same date that the Borrower was notified by Lenders pursuant to Section 2.10(a)(ii) or (iii) or (y) if the affected LIBOR Loan is then outstanding, upon at least three Business Days’ notice to the Administrative Agent, require the affected Lender to convert each such LIBOR Loan into an ABR Loan; provided further thatthat if more than one Lender is affected at any time, then all affected Lenders must be treated in the same manner pursuant to this Section 2.10(b).
(c) If, after the Closing Date, any Change in Law relating to capital adequacy or liquidity of any Lender or compliance by any Lender or its parent with any Change in Law relating to capital adequacy or liquidity occurring after the Closing Date, has or would have the effect of reducing the actual rate of return on such Lender’s or its parent’s or its Affiliate’s capital or assets as a consequence of such Lender’s commitments or obligations hereunder to a level below that which such Lender or its parent or its Affiliate could have achieved but for such Change in Law (taking into consideration such Lender’s or its parent’s policies with respect to capital adequacy or liquidity) or in the case of Section 2.10(a)(iii), then from time to time, promptly after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such actual additional amount or amounts as will compensate such Lender or its parent for such actual reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any law, rule or regulation as in effect on the Closing Date or, if later, the date on which such Person becomes a Lender hereunder or to the extent such Lender is not imposing such charges on, or requesting such compensation from, borrowers (similarly situated to the Borrower hereunder) under comparable syndicated credit facilities similar to the Credit Facilities. Each Lender, upon determining 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, which notice shall set forth in reasonable detail the basis of the calculation of such additional amounts, although the failure to give any such notice shall not, subject to Section 2.13, release or diminish the Borrower’s obligations to pay additional amounts pursuant to this Section 2.10(c) promptly following receipt of such notice. Failure or delay on the part of the Administrative Agent or any Lender to demand compensation pursuant to the foregoing provisions of this Section 2.10(c) shall not constitute a waiver of the Administrative Agent’s or such Lender’s, as the case may be, right to demand such compensation; provided that the Borrower shall not be required to compensate the Administrative Agent or any Lender pursuant to the foregoing provisions of this Section 2.10(c) for any reductions if the Administrative Agent or Lender, as the case may be, became aware (or reasonably should have been aware) of such reductions more than 180 days prior to the date that the Administrative Agent or such Lender, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs reductions and of the Administrative Agent’s or reductions such Lender’s, as applicable, intention to claim compensation therefor.
(d) If the Administrative Agent shall have received notice from the Required Lenders that the Adjusted LIBOR Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as certified by such Lender) of making or maintaining its affected LIBOR Loans during such Interest Period, the Administrative Agent shall give written notice thereof to the Borrower and the Lenders as soon as practicable thereafter (which notice shall include supporting calculations in reasonable detail). If such notice is retroactivegiven, then (i) any LIBOR Loan requested to be made on the 270-first day period referred to above of such Interest Period shall be extended made an ABR Loan, (ii) any Loans that were to include have been converted on the period first day of retroactive effect thereof.such Interest Period to LIBOR Loans shall be continued as an ABR Loan and (iii) any outstanding LIBOR Loans shall be converted, on the first day of such Interest Period, to ABR Loans. Until such notice has been withdrawn by the Administrative Agent, no further LIBOR Loans shall be made or continued as such, nor shall the Borrower have the right to convert
Appears in 1 contract
Samples: Credit Agreement (Del Frisco's Restaurant Group, Inc.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) belowany Lender, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of due to a Change in Law occurring at any changes arising time or after the Closing Funding Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for which Change in this Agreement for such SOFR Loan; or
(ii) at any time, that such Lender or Issuing Bank Law shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, (B) subject any Lender to any Tax with respect to any Credit Document or any LIBOR Loan made by it (other than (i) Taxes indemnifiable under Section 5.4, or (ii) Excluded Taxes), or (C) impose on any Lender or Issuing Bankthe London interbank market any other condition, cost or expense affecting this Agreement or LIBOR Loans made by such Lender, which results in the cost to such Lender of making, converting into, continuing or maintaining LIBOR Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or (2) other circumstances adversely affecting the availability of Term SOFRamounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iiiii) at any time, that the making or continuance of any SOFR LIBOR Loan has become unlawful by as a result of compliance by such Lender in good faith with any Change in Requirement of Law since the Closing Date, (or would conflict with any thereof such Requirement of Law not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after even though the Closing Date that materially adversely affects the availability of SOFRfailure to comply therewith would not be unlawful); then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, clause (y) in the case of Section 5.01(a)(iii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than fifteen days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (zy) in the case of Section 5.01(a)(iiiclause (ii) above, the Borrower shall take one of the actions specified in Section 5.01(b) 2.10(b), as promptly as possible and, in any event, within the time period required by lawapplicable Requirements of Law.
(b) At any time that any SOFR LIBOR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(i) or (iiiii), the Borrower may (and in the case of a SOFR LIBOR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(ii) the Borrower shall) either (i) if the affected SOFR LIBOR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(i) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ii) or (ii) if the affected SOFR LIBOR Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Funding Date, any Change in Law regarding relating to capital adequacy or liquidity by requirements of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having requirements occurring after the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Funding Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and liquidityor liquidity requirements), then from time to time, within 15 days promptly (but in any event no later than fifteen days) after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any applicable Requirement of Law as in effect on the Funding Date (except as otherwise set forth in the definition of Change in Law). Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-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 (xy) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or (yz) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank other Recipient, shall have determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any EurodollarTerm SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such EurodollarTerm SOFR Loan; or
(ii) at any time, that such Lender or Issuing Bank other Recipient shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank other Recipient deems material with respect to any EurodollarTerm SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1x) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (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 Bankother Recipient, but, in all events, excluding reserves already includable in the interest rate applicable to such Eurodollar Loan pursuant to this Agreement) or (2y) other circumstances adversely affecting the availability London interbank market or the position of Term such Lender or other Recipient in any such marketavailability of SOFR; or
(iii) at any time, that the making or continuance of any EurodollarTerm SOFR Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability London interbank marketavailability of SOFR; then, and in each such event, such Lender or Issuing Bank other Recipient (or the Administrative Agent in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give notice (by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing Banksother Recipients). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of EurodollarTerm SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks other Recipients that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of EurodollarTerm SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Base Rate Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing Bankother Recipient, upon 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 Lender or Issuing Bank other Recipient shall determine) as shall be required to compensate such Lender or Issuing Bank other Recipient for such increased costs or reductions in amounts receivable hereunder (a written notice as to the additional amounts owed to such Lender or Issuing Bankother Recipient, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank other Recipient shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(bSection 3.01(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any EurodollarTerm SOFR Loan is affected by the circumstances described in Section 5.01(a)(iiSection 3.01(a)(ii) or (iii(iii), the Borrower may (and in the case of a EurodollarTerm SOFR Loan affected pursuant to Section 5.01(a)(iiiSection 3.01(a)(iii) the Borrower shall) either (i) if the affected EurodollarTerm SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank other Recipient pursuant to Section 5.01(a)(iiSection 3.01(a)(ii) or (iii(iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Base Rate Loans or require the affected Lender or Issuing Bank other Recipient to make its requested Loan as an ABR a Base Rate Loan, or (ii) if the affected EurodollarTerm SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank other Recipient to Convert each such EurodollarTerm SOFR Loan into an ABR a Base Rate Loan; provided, however, that if more than one Lender or Issuing Bank other Recipient is affected at any time, then all affected Lenders or Issuing Banks other Recipients must be treated the same pursuant to this Section 5.01(bSection 3.01(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporation’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to 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 and liquidity), then from time to time, within 15 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(cSection 3.01(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, in reasonable detail, the basis of the calculation of such additional amounts, which basis must be reasonable, 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 5.01(cSection 3.01(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(aSection 2.09(hi) shall apply with respect to a Benchmark Transaction EventTransactionTransition Event or an Early Opt-In Election.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the The Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 3.01(a) or (c) for any such increased costs cost or reductions reduction incurred more than 270 one hundred eighty (180) days prior to the date that such Lender demands, or Issuing Bank, as the case may be, notifies the Borrower of its intention to demand, compensation therefor; provided that if the Change in Law circumstance giving rise to such increased costs cost or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions reduction is retroactive, then the 270-such one hundred eighty (180) day period referred to above shall be extended to include the period of retroactive effect thereof.
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Increased Costs, Illegality, etc. (a) In On any date for determining the event LIBOR Rate for any Interest Period or a conversion of ABR Loans to LIBOR Loans or a continuation of any of such Loans, as applicable, (i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not otherwise exist for determining LIBOR for any determination date(s) or requested Interest Period, as applicable, with respect to a proposed LIBOR Loan or in connection with an existing or proposed ABR Loan, or (xii) in the case Administrative Agent or the Required Lenders determine that for any reason that LIBOR with respect to a proposed Loan for any requested Interest Period or determination date(s) does not adequately and fairly reflect the cost to such Lenders of Section 5.01(a)(i) belowfunding such Loan, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain LIBOR Loans, or to convert ABR Loans to LIBOR Loans, shall be suspended in each case to the extent of the affected Interest Period or determination date(s), as applicable, and (y) in the case event of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; or
(ii) at any time, that such Lender or Issuing Bank shall incur increased costs or reductions described in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material preceding sentence with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) LIBOR Rate component of the definition ABR, the utilization of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change the LIBOR Rate component in Law since determining the Closing Date (includingABR shall be suspended, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (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) or (2) other circumstances adversely affecting the availability of Term SOFR; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of SOFR; then, and in each such event, such Lender or Issuing Bank (or case until the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give notice (by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing Banks). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice determination by the Required Lenders described in clause (ii) of Borrowingthis Section 2.10(a), shall, at until the option Administrative Agent upon instruction of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in Required Lenders) revokes such Notice of Borrowing, (y) in the case of Section 5.01(a)(ii) above, the Borrower shall pay to such Lender or Issuing Bank, upon 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 Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by lawnotice.
(b) At any time that any SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii)Upon receipt of such notice, the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the Borrowers may revoke any pending request for a Borrowing of, or conversion to LIBOR Loans, to the extent of the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender Interest Period or Issuing Bank pursuant to Section 5.01(a)(ii) or (iiidetermination date(s), cancel said Borrowing, as applicable or, in the case of any Borrowingfailing that, convert the related Notice of Borrowing will be deemed to have converted such request into one requesting a request for a Borrowing of ABR Loans or require denominated in Dollars in the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or Dollar Equivalent of the amount specified therein and (ii) any outstanding LIBOR Loans shall be deemed to have been converted to ABR Loans on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if the affected SOFR Loan such day is then outstanding, upon at least one not a Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b).
(c) If any Lender shall have determined that If, after the Closing Third Restatement Effective Date, any Change in Law regarding relating to capital adequacy or liquidity by adequacy requirements of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having adequacy requirements occurring after the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Third Restatement Effective Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 days promptly after demand by such Lender (with a copy to the Administrative Agent), the Borrower Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reasonably determined reduction; provided that to the extent any increased costs or reductions are incurred by any Lender as a result of (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 after the Third Restatement Effective Date, then such Lender shall be compensated pursuant to this Section 2.10(c) only if such Lender imposes such charges under other syndicated credit facilities containing provisions similar to this Section 2.10(c) involving similarly situated borrowers that such Lender is a lender under. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Parent Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s Borrowers’ obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding anything to the foregoingcontrary in this Agreement or any other Credit Documents:
(i) On March 5, 2021 the Financial Conduct Authority (“FCA”), the provisions regulatory supervisor of Section 3.01(aLIBOR’s administrator (“IBA”), announced in a public statement the future cessation or loss of representativeness of overnight/Spot Next, 1-week, 1-month, 2-month, 3-month, 6-month and 12- month U.S. dollar LIBOR tenor settings. On the earlier of (A) shall apply the date that all Available Tenors of U.S dollar LIBOR have permanently or indefinitely ceased to be provided by IBA or have been announced by the FCA pursuant to public statement or publication of information to be no longer representative and (B) the Early Opt-in Effective Date in respect of a SOFR Early Opt-in, if the then-current Relevant Rate applicable to Dollars is LIBOR, the Benchmark Replacement will replace such Relevant Rate with respect to Dollars for all purposes hereunder and under any Credit Document in respect of any setting of such Relevant Rate on such day and all subsequent settings without any amendment to, or further action or consent of any other party to this Agreement or any other Credit Document. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a Benchmark Transaction Eventmonthly basis.
(eii) Failure (x) Upon (A) the occurrence of a Benchmark Transition Event or delay (B) a determination by the Administrative Agent in consultation with the Parent Borrower that neither of the alternatives under clause (A) of the definition of Benchmark Replacement are available, the Benchmark Replacement will replace the then-current Relevant Rate with respect to Dollars for all purposes hereunder and under any Credit Document in respect of any Relevant Rate setting at or after 5:00 p.m. on the part fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any Lender other party to, this Agreement or Issuing Bank any other Credit Document so long as the Administrative Agent has not received, by such time, written notice of objection to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensationBenchmark Replacement from Lenders comprising the Required Lenders; provided that solely in the Borrower event that the then-current Relevant Rate at the time of such Benchmark Transition Event is not a SOFR-based rate, the Benchmark Replacement therefor shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower determined in accordance with clause (A) of the Change definition of Benchmark Replacement unless the Administrative Agent determines in Law giving rise to such increased costs or reductions and consultation with the Parent Borrower that neither of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions alternative rates is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereofavailable.
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Increased Costs, Illegality, etc. (ai) In the event that (x) in the case of Section 5.01(a)(i3.04(b)(i)(A) below, the Administrative Agent or Agent, (y) in the case of Sections 5.01(a)(iiSection 3.04(b)(i)(B)(1) and (iiiC) below, any Lender or Issuing Bank a Lender, and (z) in the case of Section 3.04(b)(i)(B)(2) below, a Recipient, shall have determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties heretothe Borrower):
(iA) on any date for determining the interest rate applicable to any SOFR Loan Weighted Average Rate for any Interest Reset Period that, by reason of any changes arising after the Closing DateA&R Effective Date affecting the interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; orrate;
(iiB) at any time, that (1) such Lender or Issuing Bank shall incur increased costs (other than Taxes) or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to agreeing to make or making, funding or maintaining any SOFR Loans Loans, or (2) such Recipient is subject to any Taxes (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (Ai) Indemnified Taxes, (Bii) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (Ciii) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, in either case because of (1x) any Change in Law since Law, but, in all events, excluding reserves required under Regulation D to the Closing Date (including, but not limited to, a change extent included in requirements for any reserve, special deposit, liquidity or similar requirements (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) computation of the Weighted Average Rate or (2y) other circumstances adversely occurring after the Original Closing Date affecting the availability interbank Eurodollar market or any other applicable market or the position of Term SOFRsuch Lender in such market and in each case notified the Administrative Agent thereof; or
(iiiC) at any time, that the making or continuance of any SOFR Loan bearing interest determined by reference to the Weighted Average Rate has become unlawful by compliance by such Lender in good faith with any Change in accounting standard, Law since the Closing Date, or guideline (or would conflict with any thereof such accounting standard, Law or guideline not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after complies even though the Closing Date that materially adversely affects the availability of SOFR; then, failure to comply therewith would not be unlawful) and in each such event, such Lender or Issuing Bank (or has notified the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give notice (by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing Banks). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(ii) above, the Borrower shall pay to such Lender or Issuing Bank, upon 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 Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporation’s capital or assets as a consequence of such Xxxxxx’s commitments or obligations hereunder to 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 and liquidity), then from time to time, within 15 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, in reasonable detail, the basis of the calculation of such additional amounts, which basis must be reasonable, 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 5.01(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-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 (w) in the case of clause (i)(A) and (B) below, the Administrative Agent, (x) in the case of Section 5.01(a)(iclause (i)(C) below, the Administrative Agent or the Required Lenders, (y) in the case of Sections 5.01(a)(iiclauses (ii) below, the Required Term Loan Lenders (with respect to Term Loans) or the Required Revolving Credit Lenders (with respect to Revolving Credit Commitments) and (z) in the case of clause (iii) below, any Lender or Issuing Bank Lender, shall have reasonably determined on a reasonable basis (in each case, which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan Eurocurrency Rate for any Interest Period thatthat (A) deposits in the principal amounts and currencies of the Loans comprising such Borrowing of Eurocurrency Loans are not generally available in the relevant market, by reason of any changes arising after the Closing Date, (B) adequate and fair reasonable means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement the definition of “Eurocurrency Rate” or (C) for any reason the Eurocurrency Rate for any requested Interest Period with respect to such SOFR proposed Eurocurrency Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurocurrency Loan; or
(ii) at any time, that such Lender or Issuing Bank Lenders shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Eurocurrency Loans (including any increased costs or reductions attributable to Taxes, other than any increased cost increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any attributable to (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and or (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (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) or (2) other circumstances adversely affecting the availability of Term SOFRLaw; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender in good faith with that any Change law, governmental rule, regulation, guideline or order (in Law since the Closing Date, each case whether or would conflict with any thereof not having the force of law but 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 perform any of its obligations hereunder or make, maintain or fund or charge interest with which respect to any Loan or to determine or charge interest rates based upon the Eurocurrency Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender customarily compliesto purchase or sell, or has become impracticable as a result of a contingency occurring after to take deposits of, Dollars or any Alternative Currency in the Closing Date that materially adversely affects the availability of SOFRapplicable interbank market; (such Loans, “Impacted Loans”), then, and in each any such event, such Lender Lender, Required Lenders, Required Term Loan Lenders or Issuing Bank Required Revolving Credit Lenders, as applicable (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i)(A) or (B) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Parent Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, (1) the obligation of the Lenders to make or maintain Eurocurrency Loans shall be suspended (to the extent of the affected Type Eurocurrency Loans or Interest Periods) and (2) in the event of SOFR Loans such a determination with respect to the Eurocurrency Rate component of the Base Rate, the utilization of the Eurocurrency Rate component in determining the Base Rate shall no longer be available suspended, in each case until such time as the Administrative Agent notifies the Parent Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Committed Loan Notice of Borrowing or Notice of Continuation or Conversion given by the Parent Borrower with respect to such Type of SOFR Eurocurrency Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of BorrowingBorrowerBorrowers, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower BorrowerBorrowers shall pay to such Lender Required Term Loan Lenders or Issuing BankRequired Revolving Credit Lenders, upon as applicable, promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank Lenders in their reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank Lenders for such actual increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed necessary to compensate such Lender or Issuing BankLenders, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Parent Borrower by such Lender or Issuing Bank Lenders shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) ), and (z) in the case of Section 5.01(a)(iiiclause (iii) above, (1) the obligation of such Lender to make, maintain, fund or charge interest with respect to any affected Eurocurrency Loans, to continue any affected Eurocurrency Loans or, in the case of Eurocurrency Loans in Dollars, to convert Base Rate Loans to Eurocurrency Loans shall be suspended and (2) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurocurrency Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Parent Borrower that the circumstances giving rise to such determination no longer exist and the BorrowerBorrowers shall take one of the actions specified in clause (x) or (y), as applicable, of Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by law. Notwithstanding the foregoing, if the Administrative Agent has made the determination described in Section 2.10(a)(i)(A), the Administrative Agent, in consultation with the Parent Borrower and the affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (A) of Section 2.10(a)(i), (2) the Administrative Agent or the affected Lenders notify the Administrative Agent and the Parent Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (3) any Lender determines that any law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Parent Borrower written notice thereof.
(b) At any time that any SOFR Eurocurrency Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Parent Borrower may (and in the case of a SOFR Eurocurrency Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if a Committed Loan Notice with respect to an affected Eurocurrency Loan has been submitted pursuant to Section 2.2 but the affected SOFR Eurocurrency Loan is then being made pursuant to a Borrowinghas not been funded or continued, cancel such requested Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Parent Borrower was notified by a Lender or Issuing Bank Lenders pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the an affected SOFR Eurocurrency Loan is then outstanding, upon at least one three Business Day’s Days’ notice (or immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Loan) to the Administrative Agent, prepay or, if any such Eurocurrency Loan is denominated in Dollars, require the affected Lender or Issuing Bank to Convert convert each such SOFR Eurocurrency Loan denominated in Dollars into an ABR Loana Base Rate Loan (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate); provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b). Upon any such prepayment or conversion, the BorrowerBorrowers shall also pay accrued interest on the amount so prepaid or converted.
(c) If any Lender shall have determined or Letter of Credit Issuer determines that after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by of such Lender or Letter of Credit Issuer or any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lending Office of such Lender or compliance by such any Lender or its Letter of Credit Issuer or such Lender’s or Letter of Credit Issuer’s parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the actual rate of return on such Lender’s, such Letter of Credit Issuer’s or its parent corporationsuch Lender’s or Letter of Credit Issuer’s parent’s or Affiliate’s capital or assets as a consequence of this Agreement, such XxxxxxLender’s commitments commitments, Loans, participations in Letters of Credit, Swing Line Loans or other obligations hereunder or the Letters of Credit issued by such Letter of Credit Issuer, to a level below that which such Lender Lender, such Letter of Credit Issuer or its such Lender’s or Letter of Credit Issuer’s parent corporation or Affiliate could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationsuch Letter of Credit Issuer’s policies or the policies of such Lender’s or Letter of Credit Issuer’s parent or Affiliate with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly after written demand by such Lender (with a copy to the Administrative Agent), the Parent Borrower shall pay (or cause the applicable Designated Borrower to pay) to such Lender or Letter of Credit Issuer or its parent or Affiliate, as the case may be, such actual additional amount or amounts as will compensate such Lender or its Letter of Credit Issuer or such Lender’s or Letter of Credit Issuer’s parent corporation for such actual reduction, it being understood and agreed, however, no Lender or Letter of Credit Issuer shall seek compensation under this Section 2.10(c) based on the occurrence of a Change in Law unless such Lender or Letter of Credit Issuer (in such Lender’s or Letter of Credit Issuer’s reasonable determination) is generally seeking compensation from other borrowers in the unsecured REIT loan market with respect to its similarly affected commitments, loans and/or participations under agreements with such borrowers (but not necessarily all such borrowers) having provisions similar to this Section 2.10(c); provided that in no event shall any Lender or Letter of Credit Issuer be required to disclose information of other customers. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Parent Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the BorrowerBorrowerBorrowers’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent promptly following receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-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 (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Datedue to a Change in Law, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; or
(ii) at any time, that such Lender or Issuing Bank which shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender; (B) subject any Lender or Issuing Bankto any tax (other than (1) taxes indemnified under Section 5.4, (2) taxes described in clause (A), (B) or (2C) of Section 5.4(a) or (3) taxes described in clause (f) of Section 5.4) on its loans, letters of credits, commitments or other circumstances adversely obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (C) impose on any Lender or any applicable interbank market any other condition, cost or expense affecting this Agreement or Term SOFR Rate Loans made by such Lender, which results in the availability cost to such Lender of making, converting into, continuing or maintaining Term SOFRSOFR Rate Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iiiii) at any time, time after the Effective Date that the making or continuance of any Term SOFR Rate Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing DateApplicable Law, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Effective Date that materially and adversely affects the availability of SOFRapplicable interbank market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, clause (y) in the case of Section 5.01(a)(iii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than 10 Business Days) after 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 Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (zy) in the case of Section 5.01(a)(iiiclause (ii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawApplicable Law.
(b) At any time that any Term SOFR Rate Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii2.10(a), the Borrower may (and in the case of a Term SOFR Rate Loan affected pursuant to Section 5.01(a)(iii2.10(a)(ii) the Borrower shall) either (ix) if the affected Term SOFR Rate Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (iiy) if the affected Term SOFR Rate Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such Term SOFR Rate Loan into an ABR Loan, if applicable; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Daterequirements, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s capital or assets as a consequence of such XxxxxxLender’s or Letter of Credit Issuer’s commitments or obligations hereunder to a level below that which such Lender or its Letter of Credit Issuer or their respective parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s policies with respect to capital adequacy and liquidity), then from time to time, within 15 days promptly (but no later than 10 Business Days) after written demand by such Lender or Letter of Credit Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer such additional amount or amounts as will compensate such Lender or its Letter of Credit Issuer or their respective parent corporation for such reduction, it being understood and agreed, however, that a Lender or Letter of Credit Issuer shall not be entitled to such compensation as a result of such Lender’s or Letter of Credit Issuer’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the Effective Date except as a result of a Change in Law. Each LenderLender or Letter of Credit Issuer, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, Borrower (on its own behalf) which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding If prior to the foregoingcommencement of any Interest Period for a Term SOFR Rate Loan:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted Term SOFR Rate (including, without limitation, because the provisions Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; or
(ii) the Administrative Agent is advised by the Required Lenders that the Adjusted Term SOFR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of Section 3.01(amaking or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period; then the Administrative Agent shall apply with respect give notice thereof to the Borrower and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (A) any Notice of Conversion or Continuation that requests the conversion of any Loan to, or continuation of any Loan as, a Benchmark Transaction EventTerm SOFR Rate Loan shall be ineffective and (B) if any Notice of Borrowing requests Revolving Credit Loans as Term SOFR Rate Loans, such Borrowing shall be made as ABR Loans; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then all other Types of Borrowings shall be permitted.
(e) Failure If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in Section 2.10(d)(i) have arisen and such circumstances are unlikely to be temporary or delay (ii) the circumstances set forth in Section 2.10(d)(i) have not arisen but the supervisor for the administrator of the Term SOFR Reference Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the Term SOFR Reference Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the Adjusted Term SOFR Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable. Notwithstanding anything to the contrary in Section 13.1, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders of each Class stating that such Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (e) (but, in the case of the circumstances described in clause (ii) of the first sentence of this Section 2.10(e), only to the extent the Term SOFR Reference Rate for such Interest Period is not available or published at such time on a current basis), (x) any Notice of Conversion or Continuation that requests the conversion of any Loans to, or continuation of any Loans as, Term SOFR Rate Loans shall be ineffective, and (y) if any Notice of Borrowing requests Revolving Credit Loans as Term SOFR Rate Loans, such Borrowing shall be made as ABR Loans; provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
(f) This Section 2.10 shall not apply to taxes to the extent duplicative of Section 5.4.
(g) The agreements in this Section 2.10 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(h) Notwithstanding the foregoing, no Lender or Letter of Credit Issuer shall be entitled to seek compensation under this Section 2.10 based on the part occurrence of a Change in Law arising solely from the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or any requests, rules, guidelines or directives thereunder or issued in connection therewith, unless such Lender or Issuing Bank Letter of Credit Issuer is generally seeking compensation from other borrowers in the U.S. leveraged loan market with respect to demand compensation pursuant its similarly affected commitments, loans and/or participations under agreements with such borrowers having provisions similar to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof2.10.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(iiclauses (ii) and through (iiiiv) below, any Lender or Issuing Bank Lender, shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan Eurocurrency Rate for any Interest Period that, that (x) deposits in the principal amounts of the Loans comprising any Borrowing of Fixed Loans are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the London interbank eurocurrency market, the market for loans based on “CDOR” or “BBSY” rate or the market for any similar rate for any other Alternative Currency, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of the Eurocurrency Rate; or
(ii) at any timethat, that such Lender or Issuing Bank due to a Change in Law, which shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender or Issuing Bank(except any reserve requirement taken into account in determining the Statutory Reserves); (B) subject any Lender to any Tax (other than (1) Taxes indemnifiable under Section 5.4 or (2) Excluded Taxes) on its loans, loan principal, letters of credits, commitments or other circumstances adversely obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (C) impose on any Lender, the London interbank eurocurrency market, the market for loans based on “CDOR” or “BBSY” rate or the market for any similar rate for any other Alternative Currency any other condition, cost or expense affecting this Agreement or Eurocurrency Loans made by such Lender (other than Taxes), which results in the availability cost to such Lender of Term SOFR; ormaking, converting into, continuing or maintaining Eurocurrency Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced;
(iii) at any timetime after the Closing Date, that the making or continuance of any SOFR Eurocurrency Loan has become unlawful by compliance by such Lender in good faith with any Change in Applicable Law since the Closing Date, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability London interbank eurocurrency market, the market for loans based on “CDOR” or “BBSY” rate or the market for any similar rate for any other Alternative Currency; or
(iv) at any time that the respective Alternative Currency (other than Dollars, Euros, Pounds Sterling or Canadian Dollars) is not available in sufficient amounts to fund any Borrowing of SOFRsuch Alternative Currency Loans requested pursuant to Section 2.1; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give written notice (by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (xw) in the case of Section 5.01(a)(iclause (i) or (iv) above, in the affected Type of SOFR event any Eurocurrency Loans are so affected, the applicable Eurocurrency Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and (A) any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of SOFR the Eurocurrency Loans that have not yet been incurred, Converted or Continued Incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (yB) in the case of Section 5.01(a)(iiany affected Eurocurrency Borrowing in Dollars, such Borrowing shall be converted to an ABR Borrowing at the end of the applicable Interest Period and (C) in the case of any affected Eurocurrency Borrowing in an Alternative Currency, at the Borrower’s election, such Borrowing shall either (1) be converted into ABR Borrowing denominated in Dollars in the Dollar Equivalent of the amount of such outstanding Eurocurrency Loan at the end of the applicable Interest Period or (2) be prepaid at the end of the applicable Interest Period in full; provided that if no election is made by the Borrower by the earlier of (x) the date that is three Business Days after receipt by the Borrower of such notice and (y) the last day of the current Interest Period for the applicable Eurocurrency Loan, the Borrower shall be deemed to have elected clause (1) above, (x) in the case of clause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than ten Business Days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) ), and (zy) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawApplicable Law.
(b) At any time that any SOFR Eurocurrency Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iiia)(iii), the Borrower may (and in the case of a SOFR Eurocurrency Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if the affected SOFR Eurocurrency Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, a)(iii) or (iiy) if the affected SOFR Eurocurrency Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR Eurocurrency Loan into an ABR Loan, if applicable; providedprovided that (A) if the circumstances described in Section 2.10(a)(iii) apply to any Alternative Currency Loan, howeverthe Borrower may, that in lieu of taking the actions described above, maintain such Alternative Currency Loan outstanding, in which case the applicable Eurocurrency shall be determined on the basis provided in the definition of the relevant Eurocurrency Rate, unless the maintenance of such Alternative Currency 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 (B) if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that after the Closing DateIf, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, requirements has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s capital or assets as a consequence of such XxxxxxLender’s or Letter of Credit Issuer’s commitments or obligations hereunder to a level below that which such Lender or its Letter of Credit Issuer or their respective parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s policies with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly (but no later than ten Business Days) after written demand by such Lender or Letter of Credit Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer such additional amount or amounts as will compensate such Lender or its Letter of Credit Issuer or their respective parent corporation for such reduction, it being understood and agreed, however, that a Lender or Letter of Credit Issuer shall not be entitled to such compensation as a result of such Lender’s or Letter of Credit Issuer’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the Closing Date except as a result of a Change in Law. Each LenderLender or Letter of Credit Issuer, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, Borrower (on its own behalf) which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Samples: Credit Agreement (MultiPlan Corp)
Increased Costs, Illegality, etc. (a) In the event that (w) in the case of clause (i)(A), (B) and (C) below, the Administrative Agent, (x) in the case of Section 5.01(a)(iclause (i)(D) below, the Administrative Agent or the Required Lenders, (y) in the case of Sections 5.01(a)(iiclauses (ii) below, the Required Term A-1 Lenders (with respect to Term A-1 Loans), the Required Term A-2 Lenders (with respect to Term A-2 Loans) or the Required Revolving Credit Lenders (with respect to Revolving Credit Commitments) and (z) in the case of clause (iii) below, any Lender or Issuing Bank Lender, shall have reasonably determined on a reasonable basis (in each case, which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan Eurocurrency Rate for any Interest Period thator for determining the LIBOR Daily Floating Rate for any applicable term, by reason as applicable, that (A) deposits in the principal amounts and currencies of any changes arising after the Closing DateLoans comprising such Borrowing of Eurocurrency Loans or such Borrowing of or existing LIBOR Floating Rate Loans are not generally available in the relevant market, (B) (x) adequate and fair reasonable means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement the definition of “Eurocurrency Rate” or “LIBOR Daily Floating Rate”, as applicable, and (y) (1) in the case of a Loan denominated in Dollars, the circumstances described in Section 2.9(a) do not apply and (2) in the case of a Loan denominated in a currency other than Dollars, the circumstances described in Section 2.9(d) do not apply, (C) a fundamental change has occurred in the foreign exchange or interbank markets with respect to such Alternative Currency (including, without limitation, changes in national or international financial, political or economic conditions or currency exchange rates or exchange controls) or (D) for any reason the Eurocurrency Rate for any requested Interest Period with respect to such SOFR proposed Eurocurrency Committed Loan or LIBOR Floating Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan; or
(ii) at any time, that such Lender or Issuing Bank Lenders shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (including any increased costs or reductions attributable to Taxes, other than any increased cost increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any attributable to (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and or (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (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) or (2) other circumstances adversely affecting the availability of Term SOFRLaw; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender in good faith with that any Change law, governmental rule, regulation, guideline or order (in Law since the Closing Date, each case whether or would conflict with any thereof not having the force of law but 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 perform any of its obligations hereunder or make, maintain or fund or charge interest with which respect to any Loan or to determine or charge interest rates based upon the Eurocurrency Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender customarily compliesto purchase or sell, or has become impracticable as a result of a contingency occurring after to take deposits of, Dollars or any Alternative Currency in the Closing Date that materially adversely affects the availability of SOFRapplicable interbank market; (such Loans, “Impacted Loans”), then, and in each any such event, such Lender Lender, Required Lenders, Required Term A-1 Lenders, Required Term A-2 Lenders or Issuing Bank Required Revolving Credit Lenders, as applicable (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i)(A), (B) or (C) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Parent Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, (1) the obligation of the Lenders to make or maintain Eurocurrency Committed Loans in the affected Type currencies or to make or maintain LIBOR Floating Rate Loans, as applicable, shall be suspended (to the extent of SOFR the affected Eurocurrency Loans, LIBOR Floating Rate Loans or Interest Periods) and (2) in the event of such a determination with respect to the Eurocurrency Rate component of the Base Rate, the utilization of the Eurocurrency Rate component in determining the Base Rate shall no longer be available suspended, in each case until such time as the Administrative Agent (or, in the case of a determination by the Required Lenders described in clause (i)(D) above, until the Administrative Agent upon the instruction of the Required Lenders) notifies the Parent Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and upon receipt of such notice, (I) the Parent Borrower may revoke any Notice pending request for a Borrowing of, conversion to or continuation of Eurocurrency Committed Loans in the affected currency or currencies (to the extent of the affected Eurocurrency Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans denominated in Dollars in the Dollar Equivalent of the amount specified therein and (II)(A) any outstanding affected Eurocurrency Loans denominated in Dollars will be deemed to have been converted into Base Rate Loans at the end of the applicable Interest Period and (B) any outstanding affected Eurocurrency Loans denominated in an Alternative Currency, at the Parent Borrower’s election, shall either (1) be converted into a Borrowing of Base Rate Loans denominated in Dollars in the Dollar Equivalent of the amount of such outstanding Eurocurrency Loan at the end of the applicable Interest Period or Notice (2) be prepaid at the end of Continuation or Conversion given the applicable Interest Period in full; provided that if no election is made by the Parent Borrower with respect to by the earlier of (x) the date that is three (3) Business Days after receipt by the Parent Borrower of such Type notice and (y) the last day of SOFR Loans that have not yet been incurredthe current Interest Period for the applicable Eurocurrency Loan, Converted or Continued the Parent Borrower shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowinghave elected clause (1) above, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower Borrowers shall pay to such Lender Required Term A-1 Lenders, Required Term A-2 or Issuing BankRequired Revolving Credit Lenders, upon as applicable, promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank Lenders in their reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank Lenders for such actual increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed necessary to compensate such Lender or Issuing BankLenders, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Parent Borrower by such Lender or Issuing Bank Lenders shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) ), and (z) in the case of Section 5.01(a)(iiiclause (iii) above, (1) the obligation of such Lender to make, maintain, fund or charge interest with respect to any affected Eurocurrency Loans or LIBOR Floating Rate Loans, to continue any affected Eurocurrency Loans or, in the case of Eurocurrency Loans in Dollars, to convert Base Rate Loans or LIBOR Floating Rate Loans to Eurocurrency Committed Loans or convert Eurocurrency Committed Loans to LIBOR Floating Rate Loans shall be suspended and (2) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurocurrency Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Parent Borrower that the circumstances giving rise to such determination no longer exist and the Borrowers shall take one of the actions specified in clause (x) or (y), as applicable, of Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by law. Notwithstanding the foregoing, if the Administrative Agent has made the determination described in Section 2.10(a)(i)(A), the Administrative Agent, in consultation with the Parent Borrower and the affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (A) of Section 2.10(a)(i), (2) the Administrative Agent or the affected Lenders notify the Administrative Agent and the Parent Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (3) any Lender determines that any law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Parent Borrower written notice thereof.
(b) At any time that any SOFR Eurocurrency Loan or LIBOR Floating Rate Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Parent Borrower may (and in the case of a SOFR Eurocurrency Loan or LIBOR Floating Rate Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if a Committed Loan Notice with respect to an affected Eurocurrency Committed Loan or LIBOR Floating Rate Loan has been submitted pursuant to Section 2.2 but the affected SOFR Eurocurrency Committed Loan is then being made pursuant to a Borrowingor LIBOR Floating Rate Loan has not been funded or continued, cancel such requested Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Parent Borrower was notified by a Lender or Issuing Bank Lenders pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the an affected SOFR Eurocurrency Loan or LIBOR Floating Rate Loan is then outstanding, upon at least one three Business Day’s Days’ notice (or immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Loan or LIBOR Floating Rate Loan) to the Administrative Agent, prepay or, if any such Eurocurrency Committed Loan or LIBOR Floating Rate Loan is denominated in Dollars, require the affected Lender or Issuing Bank to Convert convert each such SOFR Eurocurrency Committed Loan or LIBOR Floating Rate Loan denominated in Dollars into an ABR Loana Base Rate Loan (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate); provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b). Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted.
(c) If any Lender shall have determined or Letter of Credit Issuer determines that after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by of such Lender or Letter of Credit Issuer or any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lending Office of such Lender or compliance by such any Lender or its Letter of Credit Issuer or such Lender’s or Letter of Credit Issuer’s parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the actual rate of return on such Lender’s, such Letter of Credit Issuer’s or its parent corporationsuch Lender’s or Letter of Credit Issuer’s parent’s or Affiliate’s capital or assets as a consequence of this Agreement, such XxxxxxLender’s commitments commitments, Loans, participations in Letters of Credit or other obligations hereunder or the Letters of Credit issued by such Letter of Credit Issuer, to a level below that which such Lender Lender, such Letter of Credit Issuer or its such Lender’s or Letter of Credit Issuer’s parent corporation or Affiliate could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationsuch Letter of Credit Issuer’s policies or the policies of such Lender’s or Letter of Credit Issuer’s parent or Affiliate with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly after written demand by such Lender (with a copy to the Administrative Agent), the Parent Borrower shall pay (or cause the applicable Designated Borrower to pay) to such Lender or Letter of Credit Issuer or its parent or Affiliate, as the case may be, such actual additional amount or amounts as will compensate such Lender or its Letter of Credit Issuer or such Lender’s or Letter of Credit Issuer’s parent corporation for such actual reduction, it being understood and agreed, however, no Lender or Letter of Credit Issuer shall seek compensation under this Section 2.10(c) based on the occurrence of a Change in Law unless such Lender or Letter of Credit Issuer (in such Lender’s or Letter of Credit Issuer’s reasonable determination) is generally seeking compensation from other borrowers in the unsecured REIT loan market with respect to its similarly affected commitments, loans and/or participations under agreements with such borrowers (but not necessarily all such borrowers) having provisions similar to this Section 2.10(c); provided that in no event shall any Lender or Letter of Credit Issuer be required to disclose information of other customers. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Parent Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s Borrowers’ obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent promptly following receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-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 (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of due to a Change in Law occurring at any changes arising time on or after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for which Change in this Agreement for such SOFR Loan; or
(ii) at any time, that such Lender or Issuing Bank Law shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, (B) subject any Lender to any Tax with respect to any Credit Document, any LIBOR Loan made by it, Letters of Credit, Commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, or (C) impose on any Lender or Issuing Bankthe London interbank market any other condition, cost or expense affecting this Agreement or LIBOR Loans made by such Lender, which results in (x) an increase in the cost to such Lender of making, converting into, continuing or maintaining Loans or participating in Letters of Credit (in each case hereunder) by an amount which such Lender in its sole discretion deems material or (2y) other circumstances adversely affecting a reduction in the availability of Term SOFRamounts received or receivable by such Lender hereunder with respect to the foregoing; or
(iiiii) at any time, that the making or continuance of any SOFR LIBOR Loan has become unlawful by as a result of compliance by such Lender in good faith with any Change in Requirement of Law since the Closing Date, (or would conflict with any thereof such Requirement of Law not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after even though the Closing Date that materially adversely affects the availability of SOFRfailure to comply therewith would not be unlawful); then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) Lenders shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, clause (y) in the case of Section 5.01(a)(iii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than fifteen days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (zy) in the case of Section 5.01(a)(iiiclause (ii) above, the Borrower shall take one of the actions specified in Section 5.01(b) 2.10(b), as promptly as possible and, in any event, within the time period required by lawapplicable Requirements of Law.
(b) At any time that any SOFR LIBOR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(i) or (iiiii), the Borrower may (and in the case of a SOFR LIBOR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(ii) the Borrower shall) either (i) if the affected SOFR LIBOR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(i) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ii) or (ii) if the affected SOFR LIBOR Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporation’s capital or assets as a consequence of such Xxxxxx’s commitments or obligations hereunder to 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 and liquidity), then from time to time, within 15 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, in reasonable detail, the basis of the calculation of such additional amounts, which basis must be reasonable, 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 5.01(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-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 (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank Lender, shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan Eurodollar Rate for any Interest Period that, that (x) deposits in the principal amounts of the Loans comprising any Eurodollar Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of Eurodollar Rate; or
(ii) at any timethat, due to a Change in Law that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender or Issuing Bank(except any reserve requirement taken into account in determining the Statutory Reserves); (B) subject any Lender to any tax (other than (1) taxes indemnified under Section 5.4, (2) taxes described in clause (A), (B) or (2C) of Section 5.4(a) or (3) taxes described in Section 5.4(f)) on its loans, loan principal, letters of credits, commitments or other circumstances adversely obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (C) impose on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender, the availability cost to such Lender of Term SOFRmaking, converting into, continuing or maintaining Eurodollar Loans or participating in Letters of Credit (in each case hereunder) increases by an amount that such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) at any timetime after the Closing Date, that the making or continuance of any SOFR Eurodollar Loan has become unlawful by compliance by such Lender in good faith with any Change in Applicable Law since the Closing Date, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRinterbank Eurodollar market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Table of Contents Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of SOFR Eurodollar Loans that have not yet been incurred, Converted or Continued Incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than ten Business Days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawApplicable Law.
(b) At any time that any SOFR Eurodollar Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Eurodollar Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if the affected SOFR Eurodollar Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected SOFR Eurodollar Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR Eurodollar Loan into an ABR Loan, if applicable; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, requirements has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s capital or assets as a consequence of such XxxxxxLender’s or Letter of Credit Issuer’s commitments or obligations hereunder to a level below that which such Lender or its Letter of Credit Issuer or their respective parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s policies with respect to capital adequacy and liquidity), then from time to time, within 15 days promptly (but no later than ten Business Days) after written demand by such Lender or Letter of Credit Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer such additional amount or amounts as will compensate such Lender or its Letter of Credit Issuer or their respective parent corporation for such reduction, it being understood and agreed, however, that a Lender or Letter of Credit Issuer shall not be entitled to such compensation as a result of such Lender’s or Letter of Credit Issuer’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the Closing Date except as a result of a Change in Law. Each LenderLender or Letter of Credit Issuer, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, Borrower (on its own behalf) which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Samples: Credit Agreement (Amsurg Corp)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or and (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender the Required Term Loan Lenders (with respect to Term Loans) or Issuing Bank the Required Revolving Credit Lenders (with respect to Revolving Credit Commitments) shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan LIBOR Rate for any Interest Period that, that (x) deposits in the principal amounts and currencies of the Loans comprising such LIBOR Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the interbank LIBOR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of “LIBOR Rate”; or
(ii) at any time, that such Lender or Issuing Bank Lenders shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR LIBOR Loans (including any increased costs or reductions attributable to Taxes, other than any increased cost increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) attributable to Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income or Other Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (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) or (2) other circumstances adversely affecting the availability of Term SOFRLaw; or
(iii) at any time, that the making or continuance of any SOFR LIBOR Loan has become unlawful by compliance by such Lender Lenders in good faith with any Change in Law since the Closing Datelaw, governmental rule, regulation, guideline or order (or would conflict with any thereof such governmental rule, regulation, guideline or order not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRinterbank LIBOR market; (such Loans, “Impacted Loans”), then, and in each any such event, such Lender Required Term Loan Lenders or Issuing Bank Required Revolving Credit Lenders, as applicable (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to Holdings, the Borrower Borrowers, and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR LIBOR Loans shall no longer be available until such time as the Administrative Agent notifies Holdings, the Borrower Borrowers and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower Borrowers with respect to such Type of SOFR LIBOR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of BorrowingBorrowers, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower Borrowers shall pay to such Lender or Issuing BankLenders, upon promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender Required Term Loan Lenders or Issuing Bank Required Revolving Credit Lenders, as applicable, in their reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank Lenders for such actual increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLenders, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower Borrowers by such Lender or Issuing Bank Lenders shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) ), and (z) in the case of Section 5.01(a)(iiisubclause (iii) above, the Borrower Borrowers shall take one of the actions specified in subclause (x) or (y), as applicable, of Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by law. Notwithstanding the foregoing, if the Administrative Agent has made the determination described in Section 2.10(a)(i)(x), the Administrative Agent, in consultation with the Borrowers and the affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (x) of the first sentence of the immediately preceding paragraph, (2) the Administrative Agent or the affected Lenders notify the Administrative Agent and the Borrowers that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (3) any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrowers written notice thereof.
(b) At any time that any SOFR LIBOR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower Borrowers may (and in the case of a SOFR LIBOR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if a Notice of Borrowing or Notice of Conversion or Continuation with respect to the affected SOFR LIBOR Loan is then being made has been submitted pursuant to a BorrowingSection 2.3 but the affected LIBOR Loan has not been funded or continued, cancel such requested Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Borrower was Borrowers were notified by a Lender or Issuing Bank Lenders pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected SOFR LIBOR Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to occurring after the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the actual rate of return on such Lender’s or its parent corporationparent’s or its Affiliate’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation or its Affiliate could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly after demand by such Lender (with a copy to the Administrative Agent), the Borrower Borrowers shall pay to such Lender such actual additional amount or amounts as will compensate such Lender or its parent corporation for such actual reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any law, rule or regulation as in effect on the Closing Date or to the extent such Lender is not imposing such charges on, or requesting such compensation from, borrowers (similarly situated to the Borrowers hereunder) under comparable syndicated credit facilities similar to the Credit Facilities. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the BorrowerBorrowers, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s Borrowers’ obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent promptly following receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Samples: Credit Agreement (GoDaddy Inc.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank the Required Lenders shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
): (i) (iii) on any date for determining the interest rate applicable to any Adjusted Term SOFR Loan Rate for any Interest Period thatPeriod, that (x) deposits in the principal amounts and currencies of the Loans comprising the applicable Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the interbank SOFR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such the definition of Term SOFR LoanRate; or
or (ii) (iv) at any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any Term SOFR Loans (other than any increased cost increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any attributable to (A) Indemnified TaxesTaxes and Taxes indemnifiable under Section 5.04, (B) Other Connection Taxes described in that are imposed on or measured by net income or that are (however denominated) or that are franchise Taxes or branch profits Taxes imposed on any Agent or Lender or (C) Taxes included under clauses (b) through (d) of the definition of “Excluded Taxes and (C) Connection Income Taxes”) because of (1x) any Change in Law change since the Closing Date in any Applicable Law (includingor in the interpretation or administration thereof and including the introduction of any new Applicable Law), but not limited tosuch as, for example, without limitation, a change in requirements for any reserveofficial reserve requirements, special deposit, liquidity or similar requirements and/or (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) or (2y) other circumstances adversely affecting the availability interbank SOFR market or the position of Term SOFRsuch Lender in such market; or
or (iii) (v) at any time, that the making or continuance of any Term SOFR Loan Loans has become unlawful by as a result of compliance by such Lender in good faith with any Change in Applicable Law since the Closing Date, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRinterbank SOFR market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or shall, within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter, give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing Banks). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(ii) above, the Borrower shall pay to such Lender or Issuing Bank, upon 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 Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law.promptly
(b) At any time that any Term SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a Term SOFR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if the affected Term SOFR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by receives notice from a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected Term SOFR Loan is then then-outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, Agent require the affected Lender or Issuing Bank to Convert convert each such Term SOFR Loan into an ABR Loan; provided, howeverthat, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to occurring after the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s or its Affiliates’ capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could or any Affiliate thereof couldwould have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any Applicable Law as in effect on the Closing Date. Each Lender, upon determining in good faith that any additional amounts will be are payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event[Reserved].
(e) Failure or delay on Notwithstanding the part of any foregoing, no Lender or Issuing Bank to shall demand compensation pursuant to this Section 5.01 2.10 if it shall not constitute a waiver at the time be the general policy or practice of such Lender’s or Issuing Bank’s right Lender to demand such compensation; provided that compensation in substantially the Borrower shall not be required same manner as applied to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereofother similarly situated borrowers under comparable syndicated credit facilities.
Appears in 1 contract
Samples: Credit Agreement (Talen Energy Corp)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and clause (iiiii) below, any Lender or Issuing Bank Lender, in each case, shall have reasonably determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan Eurodollar Rate for any Interest Period that, by reason that (A) deposits in the principal amounts of the Loans comprising any changes arising after Loan are not generally available in the Closing Date, relevant market or (B) adequate and fair reasonable means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of Eurodollar Rate; or
(ii) at any time, after the later of the Closing Date and the date such entity became a Lender hereunder, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to the Loans , including as a result of any SOFR Loans Tax (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (Ax) Indemnified Taxes, (By) Taxes described in clauses (b) through (d) of the definition of “Excluded Taxes and Taxes” or (Cz) Connection Income Taxes) because of (1A) any Change in Law change since the Closing Date date hereof in any Applicable Law (includingor in the interpretation or administration thereof and including the introduction of any new Applicable Law), but not limited tosuch as, for example, without limitation, a change in requirements for any reserve, special deposit, liquidity or similar official reserve requirements (including any compulsory loan requirementbut excluding changes in the rate of tax on the overall net income of such Lender), insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender or Issuing Bank) or and/or (2B) other circumstances adversely affecting the availability interbank Eurodollar market or the position of Term SOFR; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Datesuch market, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of SOFR; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (xA) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR Loans at the Eurodollar Rate shall no longer be available and interest thereafter shall accrue at a rate equal to the Base Rate plus 8.0% per annum (provided, that in lieu of the foregoing rate change, Borrower and Administrative Agent may agree upon a different method of calculating interest with the result being that Borrower’s cost are not increased) until such time as the Administrative Agent notifies the Borrower Borrower, the Collateral Agent and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower at which time interest with respect to such Type of SOFR the Loans that have not yet been incurredshall revert to the rate applicable hereunder without regard to this clause (A), Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, and (yB) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon within ten (10) days after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest error, be final and conclusive and binding upon all parties hereto) ). [***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one Exchange Commission pursuant to Rule 24b-2 of the actions specified in Section 5.01(b) Securities Exchange Act of 1934, as promptly as possible and, in any event, within the time period required by lawamended.
(b) At If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that any SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant circumstances set forth in clause (a)(i) have arisen and such circumstances are unlikely to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, be temporary or (ii) the circumstances set forth in clause (a)(i) have not arisen but either (x) any applicable interest rate specified herein is no longer a widely recognized benchmark rate for newly originated loans in the syndicated loan market in the United States or (y) the applicable supervisor or administrator (if any) of any applicable interest rate specified herein or any Governmental Authority having, or purporting to have, jurisdiction over the affected SOFR Loan is Administrative Agent has made a public statement identifying a specific date after which any applicable interest rate specified herein shall no longer be used for determining interest rates for loans in the syndicated loan market in the United States, then outstanding, upon at least one Business Day’s notice the Administrative Agent shall establish an alternate rate of interest to the Eurodollar Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and the Administrative Agent, require Agent and the affected Lender or Issuing Bank to Convert each such SOFR Loan Borrower shall enter into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but, for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Margin). Notwithstanding anything to the contrary in Section 5.01(b)12.01, such amendment shall become effective without any further action or consent of any other party to this Agreement.
(c) If any Lender shall have determined that If, after the Closing Datelater of the date hereof and the date such entity becomes a Lender hereunder, the adoption of any Change in Applicable Law regarding capital adequacy adequacy, or liquidity any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such a Lender or its parent corporation with any request or directive made or adopted after such date regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, association, central bank, bank or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to 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 corporationparent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 ten (10) days after receipt of written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the date hereof. Each LenderLender (on its own behalf), upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will will, as promptly as practicable upon ascertaining knowledge thereof, give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts. Without limiting Section 2.10(e) below, which basis must be reasonable, although the failure to give any such notice with respect to a particular event shall not release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon for amounts accrued or incurred after the subsequent receipt date of such noticenotice with respect to such event. Notwithstanding anything herein to the contrary, (x) the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act and all rules, regulations, orders, requests, guidelines or directives 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 or foreign regulatory authorities, in each case pursuant to Basel III, in each case, are deemed to have been adopted and to have taken effect after the Closing Date. [***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
(d) Notwithstanding In the foregoingevent that any change in market conditions or any Change in Law shall at any time after the date hereof, in the reasonable opinion of any Lender, make it unlawful or impractical for such Lender to fund or maintain its portion of the Loans at the Eurodollar Rate or to continue such maintaining, or to determine or charge interest rates at the Eurodollar Rate, such Lender shall give notice of such changed circumstances to Administrative Agent and Borrower and Administrative Agent shall promptly transmit such notice to each other Lender and in the case of the portion of the Loans at the Eurodollar Rate of such Lender that is outstanding, the provisions date specified in such Lender’s notice shall be deemed to be the last day of Section 3.01(athe Interest Period of such portion of the Loans, interest upon the portion of the Loans of such Lender thereafter shall accrue at a rate equal to the Base Rate plus 8.0% per annum (provided that in lieu of the foregoing rate change, Borrower and such Lender may agree upon a different method of calculating interest) shall apply until such time as such Lender notifies Borrower and the Administrative Agent that the circumstances giving rise to such notice by such Borrower no longer exist (which notice such Lender agrees to promptly give at such time when such circumstances no longer exist), at which time interest with respect to a Benchmark Transaction Eventthe Loans of such Lender shall revert to the rate applicable hereunder without regard to this Section 2.10(d).
(e) Failure or delay on This Section 2.10 shall not apply to Taxes to the part extent duplicative of any Lender or Issuing Bank to demand compensation pursuant to Section 4.03(b). In addition, this Section 5.01 2.10 shall not constitute a waiver of such apply to any demand made after the 180th day following the requesting Lender’s or Issuing Bank’s right knowledge that it would be entitled to demand any such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereofamounts.
Appears in 1 contract
Samples: Credit Agreement (PARETEUM Corp)
Increased Costs, Illegality, etc. (a) In Without limiting Section 2.09 of this Agreement, in the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent Required Lenders or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank other Recipient, shall have determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Eurocurrency Loan for any Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Eurocurrency Loan; or
(ii) at any time, that such Lender or Issuing Bank other Recipient shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank other Recipient deems material with respect to any SOFR Eurocurrency Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of “Excluded Taxes Taxes” and (C) Connection Income Taxes) because of (1x) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (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 Bankother Recipient, but, in all events, excluding reserves already includable in the interest rate applicable to such Eurocurrency Loan pursuant to this Agreement) or (2y) other circumstances adversely affecting the availability London interbank market (other than as contemplated in Section 2.09 of Term SOFRthis Agreement) or the position of such Lender or other Recipient in any such market; or
(iii) at any time, that the making or continuance of any SOFR Eurocurrency Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability London interbank market (other than as contemplated in Section 2.09 of SOFRthis Agreement); then, and in each such event, such Lender or Issuing Bank other Recipient (or the Administrative Agent Required Lenders in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or time and (2) within 10 ten (10) Business Days of the date on which such event no longer exists give notice (by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other #4848-6974-4858 Lenders or Issuing Banksother Recipients). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR Eurocurrency Loans shall no longer be available until such time as the Required Lenders notify the Borrower, the Administrative Agent notifies (who shall promptly notify the Borrower and the Lenders Lenders) or Issuing Banks other Recipients that the circumstances giving rise to such notice by the Administrative Agent Required Lender no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Eurocurrency Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the BorrowerBorrower in the case of a Loan denominated in Dollars, be deemed converted into a Notice of Borrowing for ABR Base Rate Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing Bankother Recipient, upon 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 Lender or Issuing Bank other Recipient shall determine) as shall be required to compensate such Lender or Issuing Bank other Recipient for such increased costs or reductions in amounts receivable hereunder (a written notice as to the additional amounts owed to such Lender or Issuing Bankother Recipient, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank other Recipient shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b3.01(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any SOFR Eurocurrency Loan is affected by the circumstances described in Section 5.01(a)(ii3.01(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Eurocurrency Loan affected pursuant to Section 5.01(a)(iii3.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Eurocurrency Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank other Recipient pursuant to Section 5.01(a)(ii3.01(a)(ii) or (iii), cancel said Borrowing, or, in the case of any BorrowingBorrowing of a Loan denominated in Dollars, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Base Rate Loans or require the affected Lender or Issuing Bank other Recipient to make its requested Loan as an ABR a Base Rate Loan, or (ii) if the affected SOFR Eurocurrency Loan is then outstandingoutstanding and denominated in Dollars, upon at least one three (3) Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank other Recipient to Convert each such SOFR Eurocurrency Loan into an ABR a Base Rate Loan or (iii) if the affected Eurocurrency Loan is then outstanding and is a Loan, bear interest at such rate as the Required Lenders shall determine adequately and fairly reflects the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period plus the applicable interest rate set forth in Section 2.09(b); provided, however, that if more than one Lender or Issuing Bank other Recipient is affected at any time, then all affected Lenders or Issuing Banks other Recipients must be treated the same pursuant to this Section 5.01(b3.01(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made #4848-6974-4858 subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporation’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could would 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 and liquidity), then from time to time, within 15 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c3.01(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, in reasonable detail, the basis of the calculation of such additional amounts, which basis must be reasonable, 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 5.01(c3.01(c) upon the subsequent receipt of such notice.
(d) Notwithstanding anything in this Agreement to the foregoingcontrary, the provisions (i) no Lender shall be entitled to compensation or payment or reimbursement of other amounts under Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 3.01 for any increased costs amounts incurred or reductions incurred accruing more than 270 180 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies giving of notice to the Borrower of additional costs or other amounts of the nature described in such Sections (provided, that if such additional costs or other amounts arose as a result of a Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is that was retroactive, then the 270-such 180 day period referred to above shall be extended to include the period of retroactive effect thereof), and (ii) no Lender shall demand compensation for any reduction referred to in Section 3.01(c) if it shall not at the time be the general policy or practice of such Lender to demand such compensation, payment or reimbursement in similar circumstances under comparable provisions of other credit agreements.
Appears in 1 contract
Samples: Priming Facility Credit Agreement (GTT Communications, Inc.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent Required Lenders or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan Eurodollar Rate for any Interest Period that, that (x) deposits in the principal amounts of the Loans comprising any Eurodollar Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of Eurodollar Rate; or
(ii) at any timethat, that such Lender or Issuing Bank due to a Change in Law, which shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender; (B) subject any Lender or Issuing Bankto any tax (other than (1) taxes indemnified under Section 5.4, (2) taxes described in clause (A), (B) or (2C) of Section 5.4(a) or (3) taxes described in clause (f) of Section 5.4) on its loans, letters of credits, commitments or other circumstances adversely obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (C) impose on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender, which results in the availability cost to such Lender of Term SOFRmaking, converting into, continuing or maintaining Eurodollar Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) at any time, time after the Closing Date that the making or continuance of any SOFR Eurodollar Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing DateApplicable Law, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRinterbank Eurodollar market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Required Lenders, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent Required Lenders no longer exist (which notice the Required Lenders agree to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of SOFR Eurodollar Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than 10 Business Days) after 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 Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporation’s capital or assets as a consequence of such Xxxxxx’s commitments or obligations hereunder to 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 and liquidity), then from time to time, within 15 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, in reasonable detail, the basis of the calculation of such additional amounts, which basis must be reasonable, 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 5.01(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.in
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that (x) If any Change in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have determined on a reasonable basis (which determination Law shall, absent manifest error, be final and conclusive and binding upon all parties hereto)::
(i) on impose, modify or deem applicable any date reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for determining the interest rate applicable to account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in Adjusted Term SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR LoanRate); or
(ii) at subject any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans Taxes (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Non-Excluded Taxes, (B) Taxes described in clauses (bii) through (div) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (includingon its Loans, but not limited toCommitments, a change in requirements for any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirement, insurance charge or other assessment) against assets of, deposits with or for the account ofobligations, or credit extended byits deposits, any Lender reserves, other liabilities or Issuing Bank) or (2) other circumstances adversely affecting the availability of Term SOFRcapital attributable thereto; or
(iii) at impose on any timeLender any other condition, that the making cost or continuance of any SOFR Loan has become unlawful by compliance expense (other than Taxes) affecting this Agreement or Loans made by such Lender in good faith with any Change in Law since or participation therein, and the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of SOFR; then, and in each such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days any of the date on which such event no longer exists give notice (by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing Banks). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued foregoing shall be deemed rescinded by to increase the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(ii) above, the Borrower shall pay cost to such Lender or Issuing Bank, upon written demand therefor, any Lender of making or maintaining any Loan or of maintaining its obligation to make any such additional amounts (in the form of an increased rate ofLoan, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (a written notice as to increase the additional amounts owed cost to such Lender or Issuing Bankany Lender of participating in, showing or to reduce the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower amount of any sum received or receivable by such Lender or Issuing Bank shallany Lender hereunder (whether of principal, absent manifest errorinterest or any other amount) then, be final and conclusive and binding upon all parties heretorequest of such Lender, Administrative Borrower, within five (5) and (z) in Business Days of demand therefor, will pay to such Lender, such additional amount or amounts as will compensate such, as the case of Section 5.01(a)(iii) abovemay be, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by lawfor such additional costs incurred or reduction suffered.
(b) At any time that any Term SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii2.10(a)(ii), the Administrative Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (iA) if the affected Term SOFR Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Administrative Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (iiB) if the affected Term SOFR Loan is then outstanding, upon at least one three (3) Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such Term SOFR Loan into an ABR Loan; provided, howeverthat if more than one Lender is so affected at any time, then all affected Lenders must be treated in the same manner pursuant to this Section 2.10(b); provided, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Datelater of the date hereof, and that date such entity becomes a Lender hereunder, the adoption of any Change in Applicable Law regarding capital adequacy adequacy, or liquidity any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such a Lender or its parent corporation with any request or directive made or adopted after such date regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, association, central bank, bank or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to 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 corporationparent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 five (5) days after written demand by such Lender Xxxxxx (with a copy to the Administrative Agent), the Borrower Borrowers, jointly and severally, shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Xxxxxx’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the date hereof. Each LenderLender (on its own behalf), upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will will, as promptly as practicable upon ascertaining knowledge thereof, give prompt written notice thereof to the Administrative Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the . The failure to give any such notice notice, with respect to a particular event, within the time frame specified in Section 2.13, shall not release or diminish any of the Borrower’s obligations Borrowers’ obligation to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon for amounts accrued or incurred after the subsequent receipt date of such noticenotice with respect to such event.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event[Reserved].
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this This Section 5.01 2.10 shall not constitute a waiver of such Lender’s or Issuing Bank’s right apply to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior Taxes to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower extent duplicative of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereofSection 5.04.
Appears in 1 contract
Samples: Credit Agreement (Paragon 28, Inc.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent Required Lenders or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan Eurodollar Rate for any Interest Period that, that (x) deposits in the principal amounts of the Loans comprising any Eurodollar Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of Eurodollar Rate; or
(ii) at any timethat, that such Lender or Issuing Bank due to a Change in Law, which shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender; (B) subject any Lender or Issuing Bankto any tax (other than (1) taxes indemnified under Section 5.4, (2) taxes described in clause (A), (B) or (2C) of Section 5.4(a) or (3) taxes described in clause (f) of Section 5.4) on its loans, letters of credits, commitments or other circumstances adversely obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (C) impose on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender, which results in the availability cost to such Lender of Term SOFRmaking, converting into, continuing or maintaining Eurodollar Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) at any time, time after the Closing Date that the making or continuance of any SOFR Eurodollar Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing DateApplicable Law, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRinterbank Eurodollar market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Required Lenders, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent Required Lenders no longer exist (which notice the Required Lenders agree to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of SOFR Eurodollar Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than 10 Business Days) after 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 Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawApplicable Law.
(b) At any time that any SOFR Eurodollar Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Eurodollar Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if the affected SOFR Eurodollar Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected SOFR Eurodollar Loan is then outstanding, upon at least one three Business Day’s Days’’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR Eurodollar Loan into an ABR Loan, if applicable; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Daterequirements, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s capital or assets as a consequence of such XxxxxxLender’s or Letter of Credit Issuer’s commitments or obligations hereunder to a level below that which such Lender or its Letter of Credit Issuer or their respective parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 days promptly (but no later than 10 Business Days) after written demand by such Lender or Letter of Credit Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer such additional amount or amounts as will compensate such Lender or its Letter of Credit Issuer or their respective parent corporation for such reduction, it being understood and agreed, however, that a Lender or Letter of Credit Issuer shall not be entitled to such compensation as a result of such Lender’s or Letter of Credit Issuer’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the Closing Date except as a result of a Change in Law. Each LenderLender or Letter of Credit Issuer, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, Borrower (on its own behalf) which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding This Section 2.10 shall not apply to taxes to the foregoing, the provisions extent duplicative of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event5.4.
(e) Failure The agreements in this Section 2.10 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(f) Notwithstanding the foregoing, no Lender or delay Letter of Credit Issuer shall be entitled to seek compensation under this Section 2.10 based on the part occurrence of a Change in Law arising solely from the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or any requests, rules, guidelines or directives thereunder or issued in connection therewith, unless such Lender or Issuing Bank Letter of Credit Issuer is generally seeking compensation from other borrowers in the U.S. leveraged loan market with respect to demand compensation pursuant its similarly affected commitments, loans and/or participations under agreements with such borrowers having provisions similar to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof2.10.
Appears in 1 contract
Samples: Incremental Tranche B Term Loans (LPL Financial Holdings Inc.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent Required Lenders or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan Eurodollar Rate for any Interest Period that, that (x) deposits in the principal amounts of the Loans comprising any Eurodollar Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateEffective Date affecting the interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of Eurodollar Rate; or
(ii) at any timethat, that such Lender or Issuing Bank due to a Change in Law, which shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender; (B) subject any Lender or Issuing Bankto any tax (other than (1) taxes indemnified under Section 5.4, (2) taxes described in clause (A), (B) or (2C) of Section 5.4(a) or (3) taxes described in clause (f) of Section 5.4) on its loans, letters of credits, commitments or other circumstances adversely obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (C) impose on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender, which results in the availability cost to such Lender of Term SOFRmaking, converting into, continuing or maintaining Eurodollar Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) at any time, time after the Effective Date that the making or continuance of any SOFR Eurodollar Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing DateApplicable Law, (or would conflict with any thereof such Applicable Law not having the force of 91 LPL – A&R Credit Agreement law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Effective Date that materially and adversely affects the availability of SOFRinterbank Eurodollar market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Required Lenders, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent Required Lenders no longer exist (which notice the Required Lenders agree to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of SOFR Eurodollar Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than 10 Business Days) after 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 Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawApplicable Law.
(b) At any time that any SOFR Eurodollar Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Eurodollar Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if the affected SOFR Eurodollar Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected SOFR Eurodollar Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR Eurodollar Loan into an ABR Loan, if applicable; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Daterequirements, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s capital or assets as a consequence of such XxxxxxLender’s or Letter of Credit Issuer’s commitments or obligations hereunder to a level below that which such Lender or its Letter of Credit Issuer or their respective parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s policies with respect to capital adequacy and liquidity), then from time to time, within 15 days promptly (but no later than 10 Business Days) after written demand by such Lender or Letter of Credit Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer such additional amount or amounts as will compensate such Lender or its Letter of Credit Issuer or their respective parent corporation for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, in reasonable detail, the basis of the calculation of such additional amounts, which basis must be reasonable, 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 5.01(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.it being understood
Appears in 1 contract
Samples: Fourth Amendment Agreement (LPL Financial Holdings Inc.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period 1. that, by reason of any changes arising after the Closing Datedue to a Change in Law, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; or
(ii) at any time, that such Lender or Issuing Bank which shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender; (B) subject any Lender or Issuing Bankto any tax (other than (1) taxes indemnified under Section 5.4, (2) taxes described in clause (A), (B) or (2C) of Section 5.4(a) or (3) taxes described in clause (f) of Section 5.4) on its loans, letters of credits, commitments or other circumstances adversely obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (C) impose on any Lender or the Londonany applicable interbank market any other condition, cost or expense affecting this Agreement or EurodollarTerm SOFR Rate Loans made by such Lender, which results in the availability cost to such Lender of Term SOFRmaking, converting into, continuing or maintaining EurodollarTerm SOFR Rate Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) 2. at any time, time after the Effective Date that the making or continuance of any EurodollarTerm SOFR Rate Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing DateApplicable Law, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Effective Date that materially and adversely affects the availability of SOFRapplicable interbank Eurodollar market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, clause (y) in the case of Section 5.01(a)(iii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than 10 Business Days) after 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 Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (zy) in the case of Section 5.01(a)(iiiclause (ii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by law.Applicable Law. 88 LPL – Conformed A&R Credit Agreement
(b) At x. Xx any time that any EurodollarTerm SOFR Rate Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii2.10(a), the Borrower may (and in the case of a EurodollarTerm SOFR Rate Loan affected pursuant to Section 5.01(a)(iii2.10(a)(ii) the Borrower shall) either (ix) if the affected EurodollarTerm SOFR Rate Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (iiy) if the affected EurodollarTerm SOFR Rate Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such EurodollarTerm SOFR Rate Loan into an ABR Loan, if applicable; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) ii. If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Daterequirements, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s capital or assets as a consequence of such Xxxxxx’s or Letter of Credit Issuer’s commitments or obligations hereunder to a level below that which such Lender or its Letter of Credit Issuer or their respective parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s policies with respect to capital adequacy and liquidity), then from time to time, within 15 days promptly (but no later than 10 Business Days) after written demand by such Lender or Letter of Credit Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer such additional amount or amounts as will compensate such Lender or its Letter of Credit Issuer or their respective parent corporation for such reduction, it being understood and agreed, however, that a Lender or Letter of Credit Issuer shall not be entitled to such compensation as a result of such Xxxxxx’s or Letter of Credit Issuer’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the Effective Date except as a result of a Change in Law. Each LenderLender or Letter of Credit Issuer, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, Borrower (on its own behalf) which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
iii. If prior to the commencement of any Interest Period for a EurodollarTerm SOFR Rate Loan:
1. the Administrative Agent determines (dwhich determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining LIBOR, as applicablethe Adjusted Term SOFR Rate (including, without limitation, because the LIBO ScreenTerm SOFR Reference Rate is not available or published on a current basis), for such Interest Period; or
2. the Administrative Agent is advised by the Required Lenders that LIBOR, as applicable,the Adjusted Term SOFR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period; then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (A) any Notice of Conversion or Continuation that requests the conversion of any Loan to, or continuation of any Loan as, a EurodollarTerm SOFR Rate Loan shall be ineffective and (B) if any Notice of Borrowing requests Revolving Credit Loans as EurodollarTerm SOFR 89 LPL – Conformed A&R Credit Agreement Rate Loans, such Borrowing shall be made as ABR Loans; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then all other Types of Borrowings shall be permitted.
iv. If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in Section 2.10(d)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in Section 2.10(d)(i) have not arisen but the supervisor for the administrator of the LIBO ScreenTerm SOFR Reference Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO ScreenTerm SOFR Reference Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the LIBOAdjusted Term SOFR Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable. Notwithstanding anything to the contrary in Section 13.1, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders of each Class stating that such Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (e) (but, in the case of the circumstances described in clause (ii) of the first sentence of this Section 2.10(e), only to the extent the LIBO ScreenTerm SOFR Reference Rate for such Interest Period is not available or published at such time on a current basis), (x) any Notice of Conversion or Continuation that requests the conversion of any Loans to, or continuation of any Loans as, EurodollarTerm SOFR Rate Loans shall be ineffective, and (y) if any Notice of Borrowing requests Revolving Credit Loans as EurodollarTerm SOFR Rate Loans, such Borrowing shall be made as ABR Loans; provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
v. This Section 2.10 shall not apply to taxes to the extent duplicative of Section 5.4.
vi. The agreements in this Section 2.10 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
vii. Notwithstanding the foregoing, no Lender or Letter of Credit Issuer shall be entitled to seek compensation under this Section 2.10 based on the provisions occurrence of Section 3.01(a) shall apply a Change in Law arising solely from the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or any requests, rules, guidelines or directives thereunder or issued in connection therewith, unless such Lender or Letter of Credit Issuer is generally seeking compensation from other borrowers in the U.S. leveraged loan market with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant its similarly affected commitments, loans and/or participations under agreements with such borrowers having provisions similar to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof2.10.
Appears in 1 contract
Samples: Amendment to Credit Agreement (LPL Financial Holdings Inc.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; or
(ii) at any time, after the later of the Restatement Date and the date such entity became a Lender hereunder, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to the Loans, including as a result of any SOFR Loans Tax (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (Ax) Indemnified Taxes, (By) Taxes described in clauses (b) through (de) of the definition of “Excluded Taxes and Taxes” or (Cz) Connection Income Taxes) because of (1) any Change in Law change since the Closing Restatement Date in any Applicable Law (includingor in the interpretation or administration thereof and including the introduction of any new Applicable Law), but not limited tosuch as, for example, without limitation, a change in requirements for any reserve, special deposit, liquidity or similar official reserve requirements (including any compulsory loan requirementbut excluding changes in the rate of tax on the overall net income of such Lender), insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender or Issuing Bank) or (2) other circumstances adversely affecting the availability of Term SOFR; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of SOFR; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) aboveThereafter, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon within ten (10) Business Days after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law).
(b) At any time that any SOFR Loan is affected by If, after the circumstances described in Section 5.01(a)(ii) or (iii)later of the Restatement Date and the date such entity becomes a Lender hereunder, the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case adoption of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Applicable Law regarding capital adequacy adequacy, or liquidity any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such a Lender or its parent corporation with any request or directive made or adopted after such date regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, association, central bank, bank or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to 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 corporationparent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 ten (10) days after receipt of written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the Restatement Date. Each LenderLender (on its own behalf), upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(b), will will, as promptly as practicable upon ascertaining knowledge thereof, give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts. Without limiting Section 2.10(d) below, which basis must be reasonable, although the failure to give any such notice with respect to a particular event shall not release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(b) upon for amounts accrued or incurred after the subsequent receipt date of such noticenotice with respect to such event. Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all rules, regulations, orders, requests, guidelines or directives 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 or foreign regulatory authorities, in each case pursuant to Basel III, in each case, are deemed to have been adopted and to have taken effect after the Restatement Date.
(dc) Notwithstanding This Section 2.10 shall not apply to any demand (i) made after the foregoing, 180th day following the requesting Xxxxxx’s knowledge that it would be entitled to any such amounts or (ii) not demanded of other borrowers having similar provisions of to this Section 3.01(a) shall apply with respect to a Benchmark Transaction Event2.10.
(ei) Failure or delay on the part of If any Lender shall give notice to Borrower that such Lender is entitled to receive and is requesting payments under this Section 2.10 or Issuing Bank requires Borrower to demand compensation pay additional amounts pursuant to this Section 5.01 4.04 (any such Lender, an “Increased Cost Lender”), then Borrower may, after (solely in the case of an Increased Cost Lender) giving such Increased Cost Lender an opportunity to mitigate pursuant to Section 2.02, if applicable, at its sole expense and effort, permanently replace such Increased Cost Lender with one or more substitute Lenders reasonably acceptable to the Administrative Agent (each, a “Replacement Lender”), and such Increased Cost Lender shall have no right to refuse to be replaced hereunder. Such notice to replace the Increased Cost Lender shall specify an effective date for such replacement, which date shall not constitute a waiver of be sooner than five (5) Business Days and not be later than ten (10) Business Days after the date such Lender’s or Issuing Bank’s right to demand such compensation; notice is given, provided that (i) such Increased Cost Lender shall have received payment of an amount equal to the outstanding Obligations payable to it from the assignee (to the extent of outstanding principal and accrued interests and fees) or Borrower (in the case of all other amounts) and (ii) such assignment does not conflict with Applicable Law. Notwithstanding anything to the contrary herein, a Lender shall not be required to compensate a Lender or Issuing Bank make any such assignment pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days 2.10(d) if, prior to the effective date that for such replacement, as a result of a waiver by such Lender or Issuing Bankotherwise, as the case may becircumstances entitling Borrower to require such assignment pursuant to this Section 2.10(d) cease to apply.
(ii) Prior to the effective date of such replacement, notifies the Borrower Increased Cost Lender and each Replacement Lender shall execute and deliver an Assignment and Acceptance, subject only to the Increased Cost Lender being repaid all Obligations owed to it through the effective date of the Change in Law giving rise replacement. If the Increased Cost Lender shall refuse or fail to execute and deliver any such increased costs or reductions Assignment and Acceptance prior to the effective date of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further thatreplacement, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above Increased Cost Lender shall be extended deemed to include have executed and delivered such Assignment and Acceptance. The replacement of any Increased Cost Lender shall be made in accordance with the period terms of retroactive effect thereofSection 12.06.
Appears in 1 contract
Samples: Credit Agreement
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Datedue to a Change in Law, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; or
(ii) at any time, that such Lender or Issuing Bank which shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender; (B) subject any Lender or Issuing Bankto any tax (other than (1) taxes indemnified under Section 5.4, (2) taxes described in clause (A), (B) or (2C) of Section 5.4(a) or (3) taxes described in clause (f) of Section 5.4) on its loans, letters of credits, commitments or other circumstances adversely obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (C) impose on any Lender or any applicable interbank market any other condition, cost or expense affecting this Agreement or Term SOFR Rate Loans made by such Lender, which results in the availability cost to such Lender of making, converting into, continuing or maintaining Term SOFRSOFR Rate Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iiiii) at any time, time after the Effective Date that the making or continuance of any Term SOFR Rate Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing DateApplicable Law, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Effective Date that materially and adversely affects the availability of SOFRapplicable interbank market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, clause (y) in the case of Section 5.01(a)(iii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than 10 Business Days) after 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 Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (zy) in the case of Section 5.01(a)(iiiclause (ii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawApplicable Law.
(b) At any time that any Term SOFR Rate Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii2.10(a), the Borrower may (and in the case of a Term SOFR Rate Loan affected pursuant to Section 5.01(a)(iii2.10(a)(ii) the Borrower shall) either (ix) if the affected Term SOFR Rate Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (iiy) if the affected Term SOFR Rate Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such Term SOFR Rate Loan into an ABR Loan, if applicable; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).. 101
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Daterequirements, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s capital or assets as a consequence of such XxxxxxLender’s or Letter of Credit Issuer’s commitments or obligations hereunder to a level below that which such Lender or its Letter of Credit Issuer or their respective parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s policies with respect to capital adequacy and liquidity), then from time to time, within 15 days promptly (but no later than 10 Business Days) after written demand by such Lender or Letter of Credit Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer such additional amount or amounts as will compensate such Lender or its Letter of Credit Issuer or their respective parent corporation for such reduction, it being understood and agreed, however, that a Lender or Letter of Credit Issuer shall not be entitled to such compensation as a result of such Xxxxxx’s or Letter of Credit Issuer’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the Effective Date except as a result of a Change in Law. Each LenderLender or Letter of Credit Issuer, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, Borrower (on its own behalf) which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) If prior to the commencement of any Interest Period for a Term SOFR Rate Loan:
i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted Term SOFR Rate (including, without limitation, because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; or
ii) the Administrative Agent is advised by the Required Lenders that the Adjusted Term SOFR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period; then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (A) any Notice of Conversion or Continuation that requests the conversion of any Loan to, or continuation of any Loan as, a Term SOFR Rate Loan shall be ineffective and (B) if any Notice of Borrowing requests Revolving Credit Loans as Term SOFR Rate Loans, such Borrowing shall be made as ABR Loans; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then all other Types of Borrowings shall be permitted. 102
(e) If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in Section 2.10(d)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in Section 2.10(d)(i) have not arisen but the supervisor for the administrator of the Term SOFR Reference Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the Term SOFR Reference Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the Adjusted Term SOFR Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable. Notwithstanding anything to the contrary in Section 13.1, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders of each Class stating that such Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (e) (but, in the case of the circumstances described in clause (ii) of the first sentence of this Section 2.10(e), only to the extent the Term SOFR Reference Rate for such Interest Period is not available or published at such time on a current basis), (x) any Notice of Conversion or Continuation that requests the conversion of any Loans to, or continuation of any Loans as, Term SOFR Rate Loans shall be ineffective, and (y) if any Notice of Borrowing requests Revolving Credit Loans as Term SOFR Rate Loans, such Borrowing shall be made as ABR Loans; provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
(f) This Section 2.10 shall not apply to taxes to the extent duplicative of Section 5.4.
(g) The agreements in this Section 2.10 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(h) Notwithstanding the foregoing, no Lender or Letter of Credit Issuer shall be entitled to seek compensation under this Section 2.10 based on the provisions occurrence of Section 3.01(a) shall apply a Change in Law arising solely from the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or any requests, rules, guidelines or directives thereunder or issued in connection therewith, unless such Lender or Letter of Credit Issuer is generally seeking compensation from other borrowers in the U.S. leveraged loan market with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant its similarly affected commitments, loans and/or participations under agreements with such borrowers having provisions similar to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof2.10.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that [Reserved].
(xb) If any Change in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have determined on a reasonable basis (which determination Law shall, absent manifest error, be final and conclusive and binding upon all parties hereto)::
(i) on any date for determining the interest rate impose, modify or deem applicable to any SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; or
(ii) at any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements 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;
(ii) impose on any Lender, Issuing Bank, the London interbank market or Canadian bankers’ acceptances market any other condition, cost or expense (2other than Taxes) other circumstances adversely affecting the availability this Agreement, Loans made by such Lender or Letters of Term SOFRCredit issued by such Issuing Bank; or
(iii) at subject any timeRecipient to any Taxes (other than (A) Indemnified Taxes, that (B) Taxes described in clauses (b) through (d) of the making definition of “Excluded Taxes” and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or continuance other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; and the result of any SOFR of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, continuing, converting or maintaining any Loan has become unlawful by compliance (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 in good faith with any Change in Law since the Closing Dateor such other Recipient hereunder (whether of principal, interest or would conflict with any thereof not having the force of law but with which such Lender customarily compliesotherwise), or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of SOFR; then, and in each such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give notice (by telephone confirmed in writing) to then the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing Banks). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(ii) above, the Borrower shall will pay to such Lender or Issuing Banksuch other Recipient, upon written demand thereforas the case may be, such additional amount or amounts (in the form of an increased rate ofas will compensate such Lender, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require as the affected Lender case may be, for such additional costs incurred or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b)reduction suffered.
(c) If any Lender shall have determined or Issuing Bank determines that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, requirements has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationIssuing Bank’s capital or assets on the capital of such Lender’s or Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans or Letters of Credit made by such Xxxxxx’s commitments Lender or obligations hereunder Issuing Bank, as applicable, to a level below that which such Lender or its parent corporation Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationIssuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company with respect to capital adequacy and liquidity), then from time to timetime the Borrower will pay to such Lender or Issuing Bank, within 15 days after as applicable, such additional amount or amounts as will compensate such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company for any such reduction suffered.
(d) 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 LIBO Rate Loans or CDOR Rate Loans, or to determine or charge interest rates based upon the LIBO Rate or CDOR Rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market or Canadian Dollars in the Canadian bankers’ acceptances market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation of such Lender to make or continue LIBO Rate Loans or CDOR Rate Loans, as applicable, or to convert Base Rate Loans to LIBO Rate Loans shall be suspended until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrower shall, upon demand by from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all LIBO Rate Loans denominated in Dollars of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such LIBO Rate Loans or CDOR Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such LIBO Rate Loans or CDOR Rate Loans. Upon any such prepayment or conversion, the Borrower shall also pay to such accrued interest on the amount so prepaid or converted.
(e) A certificate of a Lender such additional or the Administrative Agent setting forth the amount or amounts as will necessary to compensate such Lender or the Administrative Agent or its parent corporation for such reduction. Each Lenderholding company, upon determining as the case may be, as specified in good faith that any additional amounts will be payable pursuant to clause (b) or (c) of this Section 5.01(c)3.01, will give prompt written notice thereof 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 Borrowerextent it is legally permitted to do so, which notice shall set forthbe delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender or the Administrative Agent, in reasonable detailas the case may be, the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give amount shown as due on any such notice shall not release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c) upon the subsequent certificate within 10 Business Days after receipt of such noticethereof.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(ef) Failure or delay on the part of any Lender or Issuing Bank the Administrative Agent to demand compensation pursuant to this Section 5.01 3.01 shall not constitute a waiver of such Lender’s or Issuing Bankthe Administrative Agent’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank the Administrative Agent pursuant to this Section 5.01 3.01 for any increased costs or reductions incurred more than 270 180 days prior to the date that such Lender or Issuing Bankthe Administrative Agent, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bankthe Administrative Agent’s intention to claim compensation therefor; provided further provided, further, that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270180-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Samples: Revolving Credit Agreement (Custom Truck One Source, Inc.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) belowany Lender, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have determined on a reasonable basis (which determination shall, absent manifest demonstrable error, be final and conclusive and binding upon all parties hereto)::
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; or
(ii) at any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any EurocurrencyTerm SOFR Loans Loan, Alternative Currency Term Rate Loan, Alternative Currency Daily Rate Loan or B/A Equivalent Loan because of any change since the Second RestatementThird Amendment Effective Date in any Requirements of Law (other than any increased cost whether or reduction not having the force of a law) or in the amount received official interpretation or receivable resulting from administration thereof and including the imposition of or a change in the rate introduction of any (A) Indemnified Taxesnew Requirements of Law, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (includingofficial guideline or request, such as, but not limited to, : (A) any Tax imposed on any Lender (except Indemnified Taxes or Other Taxes indemnifiable under Section 4.01 or any Excluded Taxes) or (B) a change in requirements for any reserveofficial reserve requirements, special depositbut, liquidity in all events, excluding reserves required under Regulation D to the extent included in the computation of the EurocurrencyTerm SOFR Rate, Alternative Currency Term Rate, Alternative Currency Daily Rate or similar requirements (including any compulsory loan requirementCanadian B/A Rate, insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender or Issuing Bank) or (2) other circumstances adversely affecting the availability of Term SOFRas applicable; or
(iiiii) at any time, that the making or continuance of any EurocurrencyTerm SOFR Loan, Alternative Currency Term Rate Loan, Alternative Currency Daily Rate Loan or B/A Equivalent Loans has become been made (x) unlawful by any Requirement of Law, (y) impossible by compliance by such Lender any Lender, in good faith with any Change in Law since the Closing Date, governmental request (whether or would conflict with any thereof not having the force of law but with which such Lender customarily complies, a Requirement of Law) or has become (z) impracticable as a result of a contingency occurring after the Closing Second RestatementThird Amendment Effective Date that which materially and adversely affects the availability of SOFRLondon interbank market for such Eurocurrency Rate Loan or the Canadianapplicable interbank market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give notice (by telephone confirmed in writing) writing to the Borrower and Company and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice to the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of EurocurrencyTerm SOFR Loans, Alternative Currency Term Rate Loans, Alternative Currency Daily Rate Loans or B/A Equivalent Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing 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/Continuation or Conversion given by the Relevant Borrower with respect to such Type of EurocurrencyTerm SOFR Loans, Alternative Currency Term Rate Loans, Alternative Currency Daily Rate Loans that or B/A Equivalent Loans which have not yet been incurred, Converted or Continued incurred (including by way of conversion) shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowingapplicable Borrowers, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay each Borrower, jointly and severally, agrees to pay, as applicable, to such Lender or Issuing BankLender, upon 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 Lender or Issuing Bank in its sole discretion shall determine) as shall be required to compensate such Lender or Issuing Bank 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 Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must shall be reasonable, submitted to the Borrower Company by such Lender or Issuing Bank and shall, absent manifest demonstrable error, be final and conclusive and binding upon on all the parties hereto) and ), (z) in the case of Section 5.01(a)(iiiclause (ii) above, the Borrower Borrowers shall take one of the actions specified in Section 5.01(b3.01(b) as promptly as possible and, in any event, within the time period required by lawa Requirement of Law.
(b) At any time that any EurocurrencyTerm SOFR Loan, Alternative Currency Term Rate Loan, Alternative Currency Daily Rate Loan or B/A Equivalent Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii3.01(a)(i), the Relevant Borrower may (may, and in the case of a EurocurrencyTerm SOFR Loan, Alternative Currency Term Rate Loan, Alternative Currency Daily Rate Loan or a B/A Equivalent Loan affected pursuant to by the circumstances described in Section 5.01(a)(iii) 3.01(a)(ii), the Relevant Borrower shall) shall either (ix) if the affected EurocurrencyTerm SOFR Loan, Alternative Currency Term Rate Loan, Alternative Currency Daily Rate Loan or B/A Equivalent Loan is then being made initially or pursuant to a Borrowingconversion, cancel such Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Relevant Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank the Administrative Agent pursuant to make its requested Loan as an ABR Loan, Section 3.01(a)(i) or (ii) or (y) if the affected EurocurrencyTerm SOFR Loan, Alternative Currency Term Rate Loan, Alternative Currency Daily Rate Loan or B/A Equivalent Loan is then outstanding, upon at least one three Business Day’s Days' written notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each convert such EurocurrencyTerm SOFR Loan, Alternative Currency Term Rate Loan into a Base, Alternative Currency Daily Rate Loan, or B/A Equivalent Loan into the applicable Base Rate Loan at the end of the applicable Interest Period or Contract Period (or in the case of an ABR Alternative Currency Daily Rate Loan; provided, howeverimmediately), or such earlier date as may be required by applicable Requirement of Law, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b3.01(b).
(c) If any Lender shall have determined determines that after the Closing DateSecond Restatement Effective Date the introduction of or any change in any applicable Requirement of Law, any Change in Law regarding guideline, directive or request (whether or not having the force of a law) concerning capital adequacy or liquidity liquidity, or any change in interpretation or administration thereof by the NAIC or any Governmental Authority, central bank or comparable agency charged by law with agency, will have the interpretation effect of increasing the amount of capital or administration thereof, liquidity required or compliance expected to be maintained by such Lender or its parent any corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by controlling such Lender based on the existence of such Lender's Commitments hereunder or its obligations hereunder, then, each Borrower, jointly and severally, agrees to pay to such Lender, upon its written demand therefor, such additional amounts as shall be material required to compensate such Lender or such other corporation for the increased cost to such Lender or such other corporation or the reduction in the rate of return on such Lender’s or its parent corporation’s capital or assets as a consequence of such Xxxxxx’s commitments or obligations hereunder to a level below that which such Lender or its parent such other corporation could have achieved but for as a result of such adoptionincrease of capital or liquidity. In determining such additional amounts, effectivenesseach Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, change or compliance (taking into consideration provided that such Lender’s or its parent corporation’s policies with respect to capital adequacy 's determination of compensation owing under this Section 3.01(c) shall, absent demonstrable error, be final and liquidity), then from time to time, within 15 days after demand by such Lender (with a copy to conclusive and binding on all the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reductionparties hereto. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c3.01(c), will give prompt written notice thereof to the BorrowerCompany, which notice shall set forth, show in reasonable detail, detail the basis of the for calculation of such additional amounts, which basis must be reasonable, 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 5.01(c) upon the subsequent receipt of such notice.
(d) Notwithstanding anything in this Agreement to the foregoingcontrary, (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 provisions 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 Second Restatement 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 3.01(a) 3.01); provided, however, that no Lender or Issuing Bank shall apply be entitled to seek compensation under this Section 3.01 based on the occurrence of a change in a Requirement of Law arising solely from Xxxx-Xxxxx and Basel III, unless such Lender or Issuing Bank is generally seeking compensation from other borrowers in the asset-based lending market with respect to a Benchmark Transaction Eventits similarly affected commitments, loans and/or participations under agreements with such borrowers having provisions similar to this Section 3.01.
(e) Failure or delay on Notwithstanding anything in this Agreement to the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that contrary, the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 3.01 for any increased costs incurred or reductions incurred suffered more than 270 180 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s 's or Issuing Bank’s 's intention to claim compensation thereforunder this Section 3.01; provided further provided, however, that, if the Change introduction or change referred to in Law Section 3.01(a)(ii) or 3.01(c) giving rise to such increased costs or reductions is retroactive, then the 270180-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 charging such costs or reduced return to its borrowers generally with respect to which it has the right to charge such costs.
Appears in 1 contract
Samples: Credit Agreement (SunOpta Inc.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the applicable Administrative Agent or (y) in the case of Sections 5.01(a)(iiclauses (ii), (iii) and (iiiiv) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan LIBOR Rate for any Interest Period that, or the BA Equivalent Rate for any BA Equivalent Interest Period that (x) deposits in the principal amounts and currencies of the Loans comprising such LIBOR Borrowing or BA Equivalent Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the interbank LIBOR or Bankers Acceptances market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of “LIBOR Rate” or “BA Equivalent Rate”; or
(ii) at any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR LIBOR Loans or BA Equivalent Loans or Letters of Credit (other than any increased cost increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income attributable to Taxes) because of (1x) any Change in Law since the Closing Date (includingLaw), but not limited tosuch as, for example, without limitation, a change in requirements for any reserveofficial reserve requirements, special deposit, liquidity or similar requirements and/or (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) or (2y) other circumstances adversely affecting the availability interbank LIBOR or Bankers Acceptances market or the position of Term SOFRsuch Lender in such market; or
(iii) at any time, that, as a result of any Change in Law after the date hereof, such Lender shall incur any new or incremental Taxes with respect to any Loan or Letter of Credit or any transaction contemplated hereunder (except for Indemnified Taxes covered by Section 4.5 or any Excluded Tax payable by such Lender); or
(iv) at any time, that the making or continuance of any SOFR LIBOR Loan or BA Equivalent Loans has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Datelaw, governmental rule, regulation, guideline or order (or would conflict with any thereof such governmental rule, regulation, guideline or order not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date date hereof that materially and adversely affects the availability of SOFRinterbank LIBOR or Bankers Acceptances market; then, and in each any such event, such Lender or Issuing Bank (or the applicable Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower Borrowers and to the applicable Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, LIBOR Loans or BA Equivalent Loans in the affected Type of SOFR Loans applicable currency shall no longer be available until such time as the applicable Administrative Agent notifies the applicable Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the such Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the applicable Borrower with respect to such Type of SOFR LIBOR Loans or BA Equivalent Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the applicable Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the applicable Borrower shall pay to such Lender or Issuing BankLender, upon promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the applicable Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiisubclause (iii) above, the applicable Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any SOFR LIBOR Loan or BA Equivalent Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower applicable Borrower(s) may (and in the case of a SOFR LIBOR Loan or BA Equivalent Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if the affected SOFR LIBOR Loan or BA Equivalent Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the such Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (iiy) if the affected SOFR LIBOR Loan denominated in Dollars or BA Equivalent Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan or BA Equivalent Loan into a Canadian Prime Rate Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b)2.10(b) or (z) in the case of any LIBOR Loan denominated in an Alternative Currency, repay such LIBOR Loan at the end of the then current Interest Period.
(c) If any Change in Law relating to capital adequacy or liquidity of any Lender shall have determined that after the Closing Date, or compliance by any Lender or its parent with any Change in Law regarding relating to capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s or its Affiliate’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation or its Affiliate could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 days promptly after demand by such Lender (with a copy to the Administrative Agent), the applicable Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the applicable Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the applicable Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to It is understood that this Section 5.01 2.10 shall not constitute a waiver of such Lender’s apply to (i) Taxes indemnifiable under Section 4.5 or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof(ii) Excluded Taxes.
Appears in 1 contract
Samples: Abl Credit Agreement (Univar Inc.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have determined on a reasonable basis (which determination shall, absent manifest demonstrable error, be final and conclusive and binding upon all parties heretohereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period Determination Date that, by reason of any changes arising after the Closing Datedate of this Agreement affecting the interbank Eurodollar market or Canadian interbank market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; orthe definition of “LIBO Rate” or “CDOR Rate”;
(ii) at any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost LIBO Rate Loan or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date CDOR Rate Loan (including, but not limited to, (A) any Tax imposed on any Lender (except Indemnified Taxes or Other Taxes indemnified under Section 5.01 or any Excluded Taxes) or (B) a change in requirements for any reserveofficial reserve requirements, special depositbut, liquidity in all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBO Rate or similar requirements (including any compulsory loan requirementCDOR Rate, insurance charge or other assessmentas applicable) against assets of, deposits with or for the account of, or credit extended by, any Lender or Issuing Bank) or (2) other circumstances adversely affecting the availability because of Term SOFRa Change in Law; or
(iii) at any time, that the making or continuance of any SOFR LIBO Rate Loan or CDOR Rate Loans has become been made (x) unlawful by any Change in Law, (y) impossible by compliance by such any Lender in good faith with any Change in Law since the Closing Date, governmental request (whether or would conflict with any thereof not having the force of law but with which such Lender customarily complies, law) or has become (z) impracticable as a result of a contingency occurring after the Closing SecondFourth Amendment Effective Date that which materially and adversely affects the availability of SOFR; interbank Eurodollar market or the Canadian interbank market, then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give notice (by telephone confirmed in writing) writing to the Borrower and 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 Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR LIBO Rate Loans or CDOR Rate Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing 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/Continuation or Conversion given by the Relevant Borrower with respect to such Type of SOFR LIBO Rate Loans that or CDOR Rate Loans which have not yet been incurred, Converted or Continued incurred (including by way of conversion) shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowingapplicable Borrowers, (y) in the case of Section 5.01(a)(iiclause (ii) above, the each U.S. Borrower, jointly and severally, agrees to pay, and each Canadian Borrower shall pay and U.K. Borrower, if any, jointly and severally, agrees to pay, as applicable, to such Lender or Issuing BankLender, upon 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 Lender or Issuing Bank in its sole discretion shall determine) as shall be required to compensate such Lender or Issuing Bank 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 Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must shall be reasonable, submitted to the Borrower Company by such Lender or Issuing Bank and shall, absent manifest demonstrable error, be final and conclusive and binding upon on all the parties hereto) and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower Borrowers shall take one of the actions specified in Section 5.01(b3.01(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any SOFR LIBO Rate Loan or CDOR Rate Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii3.01(a)(ii), the Relevant Borrower may (may, and in the case of a SOFR LIBO Rate Loan or a CDOR Rate Loan affected pursuant to by the circumstances described in Section 5.01(a)(iii) 3.01(a)(iii), the Relevant Borrower shall) , either (ix) if the affected SOFR LIBO Rate Loan or CDOR Rate Loan is then being made initially or pursuant to a Borrowingconversion, cancel such Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Relevant Borrower was notified by a the affected Lender or Issuing Bank the Administrative Agent pursuant to Section 5.01(a)(ii3.01(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected SOFR LIBO Rate Loan or CDOR Rate Loan is then outstanding, upon at least one three Business Day’s Days’ written notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each convert such SOFR LIBO Rate Loan into an ABR a U.S. Base Rate Loan, or such CDOR Rate Loan into a Canadian Prime Rate Loan, at the end of the applicable Interest Period, or such earlier date as may be required by applicable law; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b3.01(b).
(c) If any Lender shall have determined determines that after the Closing Date, SecondFourth Amendment Effective Date any Change in Law regarding will have the effect of increasing the amount of capital adequacy or liquidity by any Governmental Authority, central bank required or comparable agency charged by law with the interpretation or administration thereof, or compliance expected to be maintained by such Lender or any corporation controlling such Lender based on the existence of such Lender’s Commitments hereunder or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authorityobligations hereunder, central bank, or comparable agencythen, in the case of a U.S. Lender, each U.S. Borrower, jointly and severally, and, in the case made subsequent of U.S. and Canadian Lenders, each Canadian Borrower and U.K. Borrower, if any, jointly and severally, agrees to the Closing Datepay to such Lender, has or would have the effect of reducing by an amount reasonably deemed by upon its written demand therefor, such additional amounts as shall be required to compensate such Lender or such other corporation for the increased cost to be material to such Lender or such other corporation or the reduction in the rate of return on to such Lender or such other corporation as a result of such increase of capital or liquidity. In determining such additional amounts, each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable; provided that such Lender’s or its parent corporation’s capital or assets as a consequence determination of such Xxxxxx’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoptioncompensation owing under this Section 3.01(c) shall, effectivenessabsent demonstrable error, change or compliance (taking into consideration such Lender’s or its parent corporation’s policies with respect to capital adequacy be final and liquidity), then from time to time, within 15 days after demand by such Lender (with a copy to conclusive and binding on all the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reductionparties hereto. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c3.01(c), will give prompt written notice thereof to the BorrowerCompany, which notice shall set forth, show in reasonable detail, detail the basis of the for calculation of such additional amounts, which basis must be reasonable, 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 5.01(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event[Reserved].
(e) Failure or delay on Notwithstanding anything in this Agreement to the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that contrary, the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 3.01 (i) for any increased costs incurred or reductions incurred suffered more than 270 90 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation thereforunder this Section 3.01; provided further provided, however, that, if the Change introduction or change referred to in Law Section 3.01(a)(ii) or 3.01(c) giving rise to such increased costs or reductions is retroactive, then the 27090-day period referred to above shall be extended to include the period of retroactive effect thereofthereof or (ii) if such Lender or Issuing Bank is not charging such costs or reduced return to its borrowers generally with respect to which it has the right to charge such costs.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent Majority Revolving Lenders or Majority Term Loan Lenders, as applicable, or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank Lender, shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan LIBOR Rate for any Interest Period thatthat (A) deposits in the principal amounts of the Loans comprising such LIBOR Revolving Borrowing or LIBOR Term Loan Borrowing, as applicable, are not generally available in the relevant market, (B) by reason of any changes arising on or after the Closing DateFunding Date affecting the interbank LIBOR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement the definition of LIBOR Rate, or (C) the LIBOR Rate for such SOFR LoanInterest Period will not adequately and fairly reflect the cost to such Revolving Lenders or Term Loan Lenders, as applicable, of making or maintaining their Revolving Loans or Term Loans, as applicable, included in such Borrowing for such Interest Period; or
(ii) that, due to a Change in Law occurring at any timetime or after the Funding Date, that such Lender or Issuing Bank which Change in Law shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, (B) subject any Lender to any Tax with respect to any Credit Document or any LIBOR Loan made by it (other than (i) Taxes indemnifiable under Section 5.4, or (ii) Excluded Taxes), or (C) impose on any Lender or Issuing Bankthe London interbank market any other condition, cost or expense affecting this Agreement or LIBOR Loans made by such Lender, which results in the cost to such Lender of making, converting into, continuing or maintaining LIBOR Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or (2) other circumstances adversely affecting the availability of Term SOFRamounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) at any time, that the making or continuance of any SOFR LIBOR Loan has become unlawful by as a result of compliance by such Lender in good faith with any Change in Requirement of Law since the Closing Date, (or would conflict with any thereof such Requirement of Law not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after even though the Closing Date that materially adversely affects the availability of SOFRfailure to comply therewith would not be unlawful); then, and in each any such event, such Lender or Issuing Bank Lenders (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders, or, in the case of clause (i) the Revolving Lenders or Issuing BanksTerm Loan Lenders, as applicable). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR LIBOR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Revolving Lenders or Issuing Banks the Term Loan Lenders, as applicable, that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR LIBOR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than fifteen days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawapplicable Requirements of Law.
(b) At any time that any SOFR LIBOR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a) (ii) or (iii), the Borrower may (and in the case of a SOFR LIBOR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (i) if the affected SOFR LIBOR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (ii) if the affected SOFR LIBOR Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Funding Date, any Change in Law regarding relating to capital adequacy or liquidity by requirements of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having requirements occurring after the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Funding Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and liquidityor liquidity requirements), then from time to time, within 15 days promptly (but in any event no later than fifteen days) after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any applicable Requirement of Law as in effect on the Funding Date (except as otherwise set forth in the definition of Change in Law). Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Samples: Credit Agreement
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) belowany Lender, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of due to a Change in Law occurring at any changes arising time or after the Closing Funding Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for which Change in this Agreement for such SOFR Loan; or
(ii) at any time, that such Lender or Issuing Bank Law shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, (B) subject any Lender to any Tax with respect to any Credit Document or any LIBOR Loan made by it (other than (i) Taxes indemnifiable under Section 5.4, or (ii) Excluded Taxes), or (C) impose on any Lender or Issuing Bankthe London interbank market any other condition, cost or expense affecting this Agreement or LIBOR Loans made by such Lender, which results in the cost to such Lender of making, converting into, continuing or maintaining LIBOR Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or (2) other circumstances adversely affecting the availability of Term SOFRamounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iiiii) at any time, that the making or continuance of any SOFR LIBOR Loan has become unlawful by as a result of compliance by such Lender in good faith with any Change in Requirement of Law since the Closing Date, (or would conflict with any thereof such Requirement of Law not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after even though the Closing Date that materially adversely affects the availability of SOFRfailure to comply therewith would not be unlawful); then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, clause (y) in the case of Section 5.01(a)(iii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than fifteen days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (zy) in the case of Section 5.01(a)(iiiclause (ii) above, the Borrower shall take one of the actions specified in Section 5.01(b) 2.10(b), as promptly as possible and, in any event, within the time period required by lawapplicable Requirements of Law.
(b) At any time that any SOFR LIBOR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(i) or (iiiii), the Borrower may (and in the case of a SOFR LIBOR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(ii) the Borrower shall) either (i) if the affected SOFR LIBOR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(i) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ii) or (ii) if the affected SOFR LIBOR Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Funding Date, any Change in Law regarding relating to capital adequacy or liquidity by requirements of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having requirements occurring after the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Funding Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and liquidityor liquidity requirements), then from time to time, within 15 days promptly (but in any event no later than fifteen days) after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any applicable Requirement of Law as in effect on the Funding Date (except as otherwise set forth in the definition of Change in Law). Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-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 that:
(xi) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest error, shall be final and conclusive and binding upon all parties hereto):
(iBorrower absent manifest error) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, that by reason of any changes arising after circumstances affecting the Closing Dateinterbank eurodollar market, adequate and fair reasonable means do not exist for ascertaining the applicable LIBOR Rate with respect to a proposed Loan does not adequately and fairly reflect the cost of funding such Loan, then Agent shall give written notice of such determination to Borrower. If such notice is given, any portion of the Loans which were accruing interest rate with reference to the LIBOR Rate shall bear interest with reference to the Base Rate beginning on the basis date such notice is provided for in this Agreement for such SOFR Loanto Borrower; or
(ii) at any timeLender reasonably determines that any laws or any change therein or in the interpretation or application thereof, shall hereafter make it unlawful for any Lender in good faith to make or maintain the portion of the Loans bearing interest by reference to the LIBOR Rate, the Loan shall automatically bear interest with reference to the Base Rate on the next succeeding interest payment date or within such earlier period as required by Applicable Laws. Borrower hereby agrees promptly to pay each Lender (within ten (10) days of such Lender’s written demand therefor), any additional amounts necessary to compensate such Lender for any reasonable costs incurred by such Lender in making any conversion in accordance with this Agreement, including, without limitation, any interest or fees payable by such Lender to lenders of funds obtained by it in order to make or maintain the Loans hereunder;
(iii) any Lender reasonably determines that any Change in Law regarding liquidity or capital requirements with which such Lender is required to comply, in each case after the Closing Date, would have the effect of reducing the rate of return on the capital of such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount any corporation controlling such Lender to a level below that which such Lender or Issuing Bank deems material the corporation controlling such Lender could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of any corporation controlling such Lender with respect to capital adequacy) as a consequence of such Lender’s obligations hereunder, the Borrower shall pay to such Lender such additional amounts as will compensate such Lender for such reduction; or
(iv) any SOFR Loans Change in Law shall subject any Recipient to any Taxes (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because on its loans, loan principal, 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 Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan, or to reduce the amount of any sum received or receivable by such Recipient hereunder (1whether of principal, interest or any other amount) then, upon request of such Recipient, the Borrower will pay to such Recipient such additional amount or amounts as will compensate such Recipient for such additional costs incurred or reduction suffered.
(b) Upon (A) any Change failure by the Borrower in Law since making any Borrowing of any Loan bearing interest by reference to the Closing Date LIBOR Rate following the Borrower’s delivery to the Agent of any applicable Notice of Borrowing or (B) any payment of a Loan bearing interest by reference to LIBOR Rate on any day that is not the last day of the interest period applicable thereto (regardless of the source of such prepayment and whether voluntary, by acceleration or otherwise), the Borrower agrees that within ten (10) days of receipt of a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail (a copy of which shall be furnished to the Agent by the applicable Lender), the Borrower will pay and indemnify such Lender against any losses, expenses and liabilities (including, but not limited towithout limitation, a change in requirements for any reserve, special deposit, liquidity or similar requirements loss (including any compulsory loan requirement, insurance charge or other assessmentinterest paid) against assets of, deposits in connection with or for the account of, or credit extended by, re-employment of such funds) that any Lender or Issuing Bank) or (2) other circumstances adversely affecting the availability of Term SOFR; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable may sustain as a result of such failure or such payment. For purposes of calculating amounts payable to a contingency occurring after Lender under this paragraph, each Lender shall be deemed to have actually funded its relevant LIBOR Loan through the Closing Date purchase of a deposit bearing interest at the LIBOR Rate in an amount equal to the amount of that materially adversely affects Loan and having a maturity and repricing characteristics comparable to the availability relevant interest period; provided, however, that each Lender may fund each of SOFR; thenits Loans in any manner it sees fit, and the foregoing assumption shall be utilized only for the calculation of amounts payable under this Section 2.10(b).
(c) Notwithstanding anything to the contrary contained in each such eventthis Agreement or any other Credit Document, such Lender or Issuing Bank (or the Administrative Agent in the case of but without limiting Section 5.01(a)(i2.10(a) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give notice (by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing Banks). Thereafter (x) in the case of Section 5.01(a)(ib) above, if the affected Type of SOFR Loans Agent shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower ordetermined (which determination shall, in the case absence of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(ii) above, the Borrower shall pay to such Lender or Issuing Bank, upon 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 Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and ), or the Required Lenders notify the Agent (z) with in the case of Section 5.01(a)(iiithe Required Lenders, a copy to the Borrower) above, that the Borrower Required Lenders shall take one of the actions specified in Section 5.01(b) as promptly as possible andhave reasonably determined (which determination likewise shall, in any eventthe absence of manifest error, within the time period required by law.
be final and conclusive and binding upon all parties hereto), that (bi) At any time that any SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a) have arisen and that such circumstances are unlikely to be temporary, (ii) the relevant administrator of the London Interbank Offered Rate or a Governmental Authority having or purporting to have jurisdiction over the Agent has made a public statement identifying a specific date after which the London Interbank Offered Rate shall no longer be made available, or used for determining interest rates for loans in the applicable currency (such specific date, the “LIBOR Scheduled Unavailability Date”), or (iii) syndicated credit facilities among national and/or regional banks active in leading and participating in such facilities currently being executed, or that include language similar to that contained in this Section 2.10(c), are being executed or amended (as applicable) to incorporate or adopt a new interest rate to replace the London Interbank Offered Rate for determining interest rates for loans in the applicable currency, then, reasonably promptly after such determination by the Agent or receipt by the Agent of such notice, as applicable, the Agent and the Borrower may amend this Agreement to replace the London Interbank Offered Rate with an alternate rate of interest, giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such alternative rates of interest (any such proposed rate, a “LIBOR Replacement Rate”), and make such other related changes to this Agreement and the other Credit Documents as may be necessary or appropriate, in the case opinion of a SOFR Loan affected pursuant the Agent, to effect the provisions of this Section 5.01(a)(iii2.10(c) (provided, that any definition of the LIBOR Replacement Rate shall specify that in no event shall such LIBOR Replacement Rate be less than one percent (1.00%) for purposes of this Agreement) and any such amendment shall become effective at 5:00 p.m. (New York time) on the fifth Business Day after the Agent shall have provided written notice of such proposed amendment to all Lenders and the Borrower shall) either unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Agent written notice that such Required Lenders do not accept such amendment. The LIBOR Replacement Rate shall be applied in a manner consistent with market practice; provided that, in each case, to the extent such market practice is not administratively feasible for the Agent, such LIBOR Replacement Rate shall be applied as otherwise reasonably determined by the Agent in consultation with the Borrower. For the avoidance of doubt, the parties hereto agree that unless and until a LIBOR Replacement Rate is determined and an amendment to this Agreement is entered into to effect the provisions of this Section 2.10(c), if the circumstances under clauses (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or and (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to of this Section 5.01(b).
(c2.10(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporation’s capital or assets as a consequence of such Xxxxxx’s commitments or obligations hereunder to 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 and liquidity), then from time to time, within 15 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, in reasonable detail, the basis of the calculation of such additional amounts, which basis must be reasonable, 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 5.01(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoingexist, the provisions of Section 3.01(a2.10(a) and (b) shall apply with respect to a Benchmark Transaction Eventapply.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-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 (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent Majority Lenders or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender (or Issuing Bank the Administrative Agent, as applicable), shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan LIBOR Rate for any Interest Period that, that (A) deposits in the principal amounts of the Loans comprising such Borrowing of LIBOR Loans are not generally available in the relevant market or (B) by reason of any changes arising on or after the Closing DateDate affecting the interbank LIBOR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of LIBOR Rate; or
(ii) that a Change in Law occurring at any time, that such Lender or Issuing Bank time after the Closing Date shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, (B) subject any Lender (including any Issuing Bank and any Swingline Lender) and the Administrative Agent to any Tax (other than (i) Indemnified Taxes or Other Taxes indemnifiable under Section 5.4, or (ii) 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 (C) impose on any Lender or Issuing Bankthe London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or LIBOR Loans made by such Lender, which results in the cost to such Lender of making, converting into, continuing or maintaining LIBOR Loans or participating in Letters of Credit (2in each case hereunder) other circumstances adversely affecting increasing by an amount which such Lender reasonably deems material or the availability of Term SOFRamounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) at any time, that the making or continuance of any SOFR LIBOR Loan has become unlawful by as a result of compliance by such Lender in good faith with any Change in Requirement of Law since the Closing Date, (or would conflict with any thereof such Requirement of Law not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after even though the Closing Date that materially adversely affects the availability of SOFRfailure to comply therewith would not be unlawful); then, and in each any such event, such Lender or Issuing Bank Lenders (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) and (ii)(B) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR LIBOR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of SOFR LIBOR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender (or Issuing Bankthe Administrative Agent, upon as applicable), promptly (but no later than fifteen (15) days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such Lender (or Issuing Bank the Administrative Agent, as applicable) for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender (or Issuing Bankthe Administrative Agent, as applicable), showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender (or Issuing Bank the Administrative Agent, as applicable) shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawapplicable Requirements of Law.
(b) At any time that any SOFR LIBOR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR LIBOR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (i) if the affected SOFR LIBOR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans ) or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR LIBOR Loan is then outstanding, upon at least one three (3) Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is are affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by requirements of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to requirements occurring after the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and liquidityor liquidity requirements), then from time to time, within 15 days promptly (but in any event no later than fifteen (15) days) after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any applicable Requirement of Law as in effect on the Closing Date. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-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 (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank the Required Lenders shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any Adjusted Term SOFR Loan Rate or Adjusted Daily Simple SOFR for any Interest Period that, that (x) deposits in the principal amounts and currencies of the Revolving Credit Loans comprising such SOFR Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the SOFR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such the definition of Term SOFR LoanRate or Daily Simple SOFR, as applicable; or
(ii) at any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any attributable to (Ai) Indemnified TaxesTaxes and Taxes indemnifiable under Section 5.4, (Bii) net income Taxes and franchise and excise Taxes (imposed in lieu of net income Taxes) imposed on any Agent or Lender or (iii) Taxes described in included under clauses (bc) through (df) of the definition of “Excluded Taxes and (C) Connection Income Taxes”) because of (1x) any Change in Law change since the Closing Date in any Applicable Law (includingor in the interpretation or administration thereof and including the introduction of any new Applicable Law), but not limited tosuch as, for example, without limitation, a change in requirements for any reserveofficial reserve requirements, special deposit, liquidity or similar requirements and/or (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) or (2y) other circumstances adversely affecting the availability SOFR market or the position of Term SOFRsuch Lender in such market; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by as a result of compliance by such Lender in good faith with any Change in Applicable Law since the Closing Date, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRSOFR market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowingas applicable, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, of or a different method of calculating, interest or otherwise otherwise, as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiisubclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawApplicable Law.
(b) At any time that any SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Loan Loan, affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if the affected SOFR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected SOFR Loan is then then-outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, Agent require the affected Lender or Issuing Bank to Convert convert each such SOFR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to occurring after the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s or its Affiliates’ capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation or any Affiliate thereof could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any Applicable Law as in effect on the Closing Date. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Samples: Credit Agreement (Vistra Corp.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) belowany Lender, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of due to a Change in Law occurring at any changes arising time or after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for which Change in this Agreement for such SOFR Loan; or
(ii) at any time, that such Lender or Issuing Bank Law shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBOR Rate), (B) subject any Lender to any Tax with respect to any Credit Document or Issuing Bankany LIBOR Loan made by it (other than (i) Taxes indemnifiable under Section 5.4, or (2ii) Excluded Taxes), or (C) impose on any Lender or the London interbank market any other circumstances adversely condition, cost or expense affecting this Agreement or LIBOR Loans made by such Lender, which results in the availability cost to such Lender of Term SOFRmaking, converting into, continuing or maintaining LIBOR Loans increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iiiii) at any time, that the making or continuance of any SOFR LIBOR Loan has become unlawful by as a result of compliance by such Lender in good faith with any Change in Requirement of Law since the Closing Date, (or would conflict with any thereof such Requirement of Law not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after even though the Closing Date that materially adversely affects the availability of SOFRfailure to comply therewith would not be unlawful); then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give written notice (by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, clause (y) in the case of Section 5.01(a)(iii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than fifteen days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (zy) in the case of Section 5.01(a)(iiiclause (ii) above, the Borrower shall take one of the actions specified in Section 5.01(b) 2.10(b), as promptly as possible and, in any event, within the time period required by lawapplicable Requirements of Law.
(b) At any time that any SOFR LIBOR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(i) or (iiiii), the Borrower may (and in the case of a SOFR LIBOR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(ii) the Borrower shall) either (i) if the affected SOFR LIBOR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(i) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ii) or (ii) if the affected SOFR LIBOR Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by requirements of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to requirements occurring after the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and liquidityor liquidity requirements), then from time to time, within 15 days promptly (but in any event no later than fifteen days) after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any applicable Requirement of Law as in effect on the Closing Date (except as otherwise set forth in the definition of Change in Law). Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Samples: Junior Secured Debtor in Possession Credit Agreement (California Resources Corp)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; or
(ii) at any time, after the later of the Restatement Date and the date such entity became a Lender hereunder, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to the Loans, including as a result of any SOFR Loans Tax (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (Ax) Indemnified Taxes, (By) Taxes described in clauses (b) through (de) of the definition of “Excluded Taxes and Taxes” or (Cz) Connection Income Taxes) because of (1) any Change in Law change since the Closing Restatement Date in any Applicable Law (includingor in the interpretation or administration thereof and including the introduction of any new Applicable Law), but not limited tosuch as, for example, without limitation, a change in requirements for any reserve, special deposit, liquidity or similar official reserve requirements (including any compulsory loan requirementbut excluding changes in the rate of tax on the overall net income of such Lender), insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender or Issuing Bank) or (2) other circumstances adversely affecting the availability of Term SOFR; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of SOFR; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(ii) aboveThereafter, the Borrower shall pay to such Lender or Issuing BankLender, upon within ten (10) Business Days after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law).
(b) At any time that any SOFR Loan is affected by If, after the circumstances described in Section 5.01(a)(ii) or (iii)later of the Restatement Date and the date such entity becomes a Lender hereunder, the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case adoption of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Applicable Law regarding capital adequacy adequacy, or liquidity any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such a Lender or its parent corporation with any request or directive made or adopted after such date regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, association, central bank, bank or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to 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 corporationparent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 ten (10) days after receipt of written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the Restatement Date. Each LenderLender (on its own behalf), upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(b), will will, as promptly as practicable upon ascertaining knowledge thereof, give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts. Without limiting Section 2.10(d) below, which basis must be reasonable, although the failure to give any such notice with respect to a particular event shall not release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(b) upon for amounts accrued or incurred after the subsequent receipt date of such noticenotice with respect to such event. Notwithstanding anything herein to the contrary, (x) the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act and all rules, regulations, orders, requests, guidelines or directives 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 or foreign regulatory authorities, in each case pursuant to Basel III, in each case, are deemed to have been adopted and to have taken effect after the Restatement Date.
(dc) Notwithstanding This Section 2.10 shall not apply to any demand (i) made after the foregoing, 180th day following the requesting Lender’s knowledge that it would be entitled to any such amounts or (ii) not demanded of other borrowers having similar provisions of to this Section 3.01(a) shall apply with respect to a Benchmark Transaction Event2.10.
(ei) Failure or delay on the part of If any Lender shall give notice to the Borrower that such Lender is entitled to receive and is requesting payments under this Section 2.10 or Issuing Bank requires the Borrower to demand compensation pay additional amounts pursuant to this Section 5.01 4.04 (any such Lender, an “Increased Cost Lender”), then the Borrower may, after (solely in the case of an Increased Cost Lender) giving such Increased Cost Lender an opportunity to mitigate pursuant to Section 2.02, if applicable, at its sole expense and effort, permanently replace such Increased Cost Lender with one or more substitute Lenders reasonably acceptable to the Administrative Agent (each, a “Replacement Lender”), and such Increased Cost Lender shall have no right to refuse to be replaced hereunder. Such notice to replace the Increased Cost Lender shall specify an effective date for such replacement, which date shall not constitute a waiver of be sooner than five (5) Business Days and not be later than ten (10) Business Days after the date such Lender’s or Issuing Bank’s right to demand such compensation; notice is given, provided that (i) such Increased Cost Lender shall have received payment of an amount equal to the outstanding Obligations payable to it from the assignee (to the extent of outstanding principal and accrued interests and fees) or the Borrower (in the case of all other amounts) and (ii) such assignment does not conflict with Applicable Law. Notwithstanding anything to the contrary herein, a Lender shall not be required to compensate a Lender or Issuing Bank make any such assignment pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days 2.10(d) if, prior to the effective date that for such replacement, as a result of a waiver by such Lender or Issuing Bankotherwise, as the case may be, notifies circumstances entitling the Borrower to require such assignment pursuant to this Section 2.10(d) cease to apply.
(ii) Prior to the effective date of such replacement, the Increased Cost Lender and each Replacement Lender shall execute and deliver an Assignment and Acceptance, subject only to the Increased Cost Lender being repaid all Obligations owed to it through the effective date of the Change in Law giving rise replacement. If the Increased Cost Lender shall refuse or fail to execute and deliver any such increased costs or reductions Assignment and Acceptance prior to the effective date of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further thatreplacement, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above Increased Cost Lender shall be extended deemed to include have executed and delivered such Assignment and Acceptance. The replacement of any Increased Cost Lender shall be made in accordance with the period terms of retroactive effect thereofSection 12.06.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank Lender, shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan Eurodollar Rate for any Interest Period that, that (x) deposits in the principal amounts of the Loans comprising any Borrowing of Eurodollar Loans are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the London interbank eurocurrency market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of Eurodollar Rate; or
(ii) at any timethat, that such Lender or Issuing Bank due to a Change in Law, which shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender or Issuing Bank(except any reserve requirement taken into account in determining the Statutory Reserves); (B) subject any Lender to any tax (other than (1) taxes indemnifiable under Section 5.4, (2) taxes described in clause (A), (B) or (2C) of Section 5.4(a) or (3) taxes described in Section 5.4(f)) on its loans, loan principal, letters of credits, commitments or other circumstances adversely obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (C) impose on any Lender or the London interbank eurocurrency market any other condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender, which results in the availability cost to such Lender of Term SOFRmaking, converting into, continuing or maintaining Eurodollar Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) at any timetime after the Closing Date, that the making or continuance of any SOFR Eurodollar Loan has become unlawful by compliance by such Lender in good faith with any Change in Applicable Law since the Closing Date, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRLondon interbank eurocurrency market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give written notice (by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of SOFR Eurodollar Loans that have not yet been incurred, Converted or Continued Incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than ten Business Days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawApplicable Law.
(b) At any time that any SOFR Eurodollar Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii(iii), the Borrower may (and in the case of a SOFR Eurodollar Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if the affected SOFR Eurodollar Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (iiy) if the affected SOFR Eurodollar Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR Eurodollar Loan into an ABR Loan, if applicable; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that after the Closing DateIf, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, requirements has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s capital or assets as a consequence of such XxxxxxLender’s or Letter of Credit Issuer’s commitments or obligations hereunder to a level below that which such Lender or its Letter of Credit Issuer or their respective parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s policies with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly (but no later than ten Business Days) after written demand by such Lender or Letter of Credit Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer such additional amount or amounts as will compensate such Lender or its Letter of Credit Issuer or their respective parent corporation for such reduction, it being understood and agreed, however, that a Lender or Letter of Credit Issuer shall not be entitled to such compensation as a result of such Lender’s or Letter of Credit Issuer’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the Closing Date except as a result of a Change in Law. Each LenderLender or Letter of Credit Issuer, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, Borrower (on its own behalf) which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions This Section 2.10 shall not operate to provide payments that are duplicative of those required under Section 3.01(a) shall apply with respect to a Benchmark Transaction Event5.4.
(e) Failure The agreements in this Section 2.10 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(f) Notwithstanding the foregoing, no Lender or delay Letter of Credit Issuer shall be entitled to seek compensation under this Section 2.10 based on the part occurrence of a Change in Law arising solely from (x) the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act or any requests, rules, guidelines or directives thereunder or issued in connection therewith or (y) Basel III or any requests, rules, guidelines or directives thereunder or issued in connection therewith, unless such Lender or Issuing Bank Letter of Credit Issuer is generally seeking compensation from other borrowers in the U.S. leveraged loan market with respect to demand compensation pursuant its similarly affected commitments, loans and/or participations under agreements with such borrowers having provisions similar to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof2.10.
Appears in 1 contract
Samples: Incremental Revolving Credit Commitment Increase Agreement (MultiPlan Corp)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank the Required Lenders shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any Adjusted Term SOFR Loan Rate for any Interest Period thatPeriod, that (x) deposits in the principal amounts and currencies of the Loans comprising the applicable Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the interbank SOFR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such the definition of Term SOFR LoanRate; or
(ii) at any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any Term SOFR Loans (other than any increased cost increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any attributable to (A) Indemnified TaxesTaxes and Taxes indemnifiable under Section 5.4, (B) Other Connection Taxes described in that are imposed on or measured by net income or that are (however denominated) franchise or branch profits Taxes imposed on any Agent or Lender or (C) Taxes included under clauses (b) through (d) of the definition of “Excluded Taxes and (C) Connection Income Taxes”) because of (1x) any Change in Law change since the Closing Date in any Applicable Law (includingor in the interpretation or administration thereof and including the introduction of any new Applicable Law), but not limited tosuch as, for example, without limitation, a change in requirements for any reserveofficial reserve requirements, special deposit, liquidity or similar requirements and/or (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) or (2y) other circumstances adversely affecting the availability interbank SOFR market or the position of Term SOFRsuch Lender in such market; or
(iii) at any time, that the making or continuance of any Term SOFR Loan Loans has become unlawful by as a result of compliance by such Lender in good faith with any Change in Applicable Law since the Closing Date, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRinterbank SOFR market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or shall, within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter, give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of Term SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of Term SOFR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowingas applicable, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, of or a different method of calculating, interest or otherwise otherwise, as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiisubclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawApplicable Law.
(b) At any time that any Term SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a Term SOFR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if the affected Term SOFR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by receives notice from a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected Term SOFR Loan is then then-outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, Agent require the affected Lender or Issuing Bank to Convert convert each such Term SOFR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to occurring after the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s or its Affiliates’ capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation or any Affiliate thereof could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any Applicable Law as in effect on the Closing Date. Each Lender, upon determining in good faith that any additional amounts will be are payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event[Reserved].
(e) Failure or delay on Notwithstanding the part of any foregoing, no Lender or Issuing Bank to shall demand compensation pursuant to this Section 5.01 2.10 if it shall not constitute a waiver at the time be the general policy or practice of such Lender’s or Issuing Bank’s right Lender to demand such compensation; compensation in substantially the same manner as applied to other similarly situated borrowers under comparable syndicated credit facilities.
(f) Alternate Rate of Interest.
(i) [Reserved].
(ii) Notwithstanding anything to the contrary herein or in any other Credit Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Credit Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Credit Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Credit Document in respect of any Benchmark setting at or after 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided that to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Credit Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(iii) Notwithstanding anything to the contrary herein (including in Section 13.1 of this Agreement) or in any other Credit Document, the Administrative Agent will have the right, in consultation with the Borrower, to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Credit Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Credit Document.
(iv) The Administrative Agent will promptly notify the Borrower shall not and the Lenders of (1) any occurrence of a Benchmark Transition Event, (2) the implementation of any Benchmark Replacement, (3) the effectiveness of any Benchmark Replacement Conforming Changes, (4) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (v) below and (5) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be required to compensate a made by the Administrative Agent or, if applicable, any Lender (or Issuing Bank group of Lenders) pursuant to this Section 5.01 for 2.10(f), including any increased costs determination with respect to a tenor, rate or reductions incurred more than 270 days prior adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Document, except, in each case, as expressly required pursuant to this Section 2.10(f).
(v) Notwithstanding anything to the date contrary herein or in any other Credit Document, at any time (including in connection with the implementation of a Benchmark Replacement), (1) if the then-current Benchmark is a term rate (including the Term SOFR Rate) and either (a) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such Lender rate from time to time as selected by the Administrative Agent in its reasonable discretion or Issuing Bank, as (b) the case may be, notifies regulatory supervisor for the Borrower of the Change in Law giving rise to such increased costs or reductions and administrator of such Lender’s Xxxxxxxxx has provided a public statement or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to publication of information announcing that any tenor for such increased costs Benchmark is or reductions is retroactivewill be no longer representative, then the 270Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor, and (2) if a tenor that was removed pursuant to clause (1) above either (x) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (y) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(vi) The Borrower may revoke any request for a Borrowing of Term SOFR Loans, or a conversion to or continuation of a Term SOFR Loan to be converted or continued, during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any request for a Borrowing of, conversion to or continuation of Term SOFR Loans into a request for a Borrowing of or conversion to an ABR Loan. During any Benchmark Unavailability Period, or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR. Furthermore, if any Term SOFR Loan is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to the Term SOFR Rate, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.10(f), any Term SOFR Loan shall on the last day period referred of the Interest Period applicable to above such Term SOFR Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall be extended to include the period of retroactive effect thereofconstitute, an ABR Loan.
Appears in 1 contract
Samples: Credit Agreement (Talen Energy Corp)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or and (y) in the case of Sections 5.01(a)(iiclauses (ii), (iii) and (iiiiv) below, any Lender the Required Lenders or Issuing Bank the Letter of Credit Issuers shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
): (i) on any date for determining the interest rate applicable to any Adjusted SOFR Loan Rate for any Interest Period that, that (x) deposits in the principal amounts and currencies of the Loans comprising such SOFR Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateRestatement Effective Date affecting the interbank SOFR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such the definition of Adjusted SOFR LoanRate; or
or (ii) at any time, that such Lender Lenders or Issuing Bank such Letter of Credit Issuers shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans or Letters of Credit (including the issuance and maintenance of thereof or participating therein or an agreement to issue or maintain a Letter of Credit or participate therein) (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate with respect to Taxes) because of any Change in Law; (Aiii) that a Change in Law shall subject any such Lenders or Letter of Credit Issuers to any Tax (other than (1) Indemnified Taxes, (B2) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and or (C3) Connection Income Other Taxes) because on its loans, loan principal, letters of (1) any Change in Law since the Closing Date (includingcredit, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirement, insurance charge commitments or other assessment) against assets of, deposits with or for the account ofobligations, or credit extended byits deposits, any Lender reserves, other liabilities or Issuing Bank) capital attributable thereto; or (2) other circumstances adversely affecting the availability of Term SOFR; or
(iiiiv) at any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender Lenders in good faith with any Change in Law since the Closing Datelaw, governmental rule, regulation, guideline or order (or would conflict with any thereof such governmental rule, regulation, guideline or order not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Restatement Effective Date that materially and adversely affects the availability of SOFRinterbank SOFR market; (such Loans, “Impacted Loans”), then, and in each any such event, such Lender Required Lenders or Issuing Bank Letter of Credit Issuers (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders (or Issuing Banks Letter of Credit Issuers in the case of clause (ii) above) that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender Lenders or Issuing BankLetter of Credit Issuers, upon promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law.-80-
(b) At any time that any SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iiiiv), the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iv) the Borrower shall) either (ix) if a Notice of Borrowing or Notice of Conversion or Continuation with respect to the affected SOFR Loan is then being made has been submitted pursuant to a BorrowingSection 2.3 but the affected SOFR Loan has not been funded or continued, cancel such requested Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank Lenders pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, iv) or (iiy) if the affected SOFR Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Restatement Effective Date, any Change in Law regarding relating to capital adequacy or liquidity by of any Governmental Authority, central bank Lender or comparable agency charged by law with the interpretation or administration thereof, Letter of Credit Issuer or compliance by such any Lender or Letter of Credit Issuer or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having occurring after the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Restatement Effective Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the actual rate of return on such Lender’s or Letter of Credit Issuer’s or their respective parent’s or its parent corporationAffiliate’s capital or assets as a consequence of such XxxxxxLender’s or Letter of Credit Issuer’s commitments or obligations hereunder to a level below that which such Lender or Letter of Credit Issuer or their respective parent or its parent corporation Affiliate could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such LenderXxxxxx’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s policies with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly after written demand by such Lender or Letter of Credit Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer such actual additional amount or amounts as will compensate such Lender or Letter of Credit Issuer or its parent corporation for such actual reduction, it being understood and agreed, however, that a Lender or Letter of Credit Issuer shall not be entitled to such compensation as a result of such Lender’s or Letter of Credit Issuer’s compliance with, or pursuant to any request or directive to comply with, any law, rule or regulation as in effect on the Restatement Effective Date or to the extent such Lender or Letter of Credit Issuer is not imposing such charges on, or requesting such compensation from, borrowers (similarly situated to the Borrower hereunder) under comparable syndicated credit facilities similar to the Credit Facilities. Each LenderLender and Letter of Credit Issuer, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c) upon the subsequent receipt of such notice.-81-
(d) Notwithstanding If the foregoingAdministrative Agent shall have received notice from the Required Lenders that the Adjusted SOFR Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as certified by such Lenders) of making or maintaining their affected SOFR Loans during such Interest Period, the provisions of Section 3.01(aAdministrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the Lenders as soon as practicable thereafter (which notice shall include supporting calculations in reasonable detail). If such notice is given, (i) shall apply with respect any SOFR Loan requested to a Benchmark Transaction Event.
(e) Failure or delay be made on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver first day of such Lender’s Interest Period shall be made an ABR Loan, (ii) any Loans that were to have been converted on the first day of such Interest Period to SOFR Loans shall be continued as an ABR Loan and (iii) any outstanding SOFR Loans shall be converted, on the first day of such Interest Period, to ABR Loans. Until such notice has been withdrawn by the Administrative Agent, no further SOFR Loans shall be made or Issuing Bank’s continued as such, nor shall the Borrower have the right to demand such compensation; provided that the Borrower shall not be required convert ABR Loans to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereofSOFR Loans.
Appears in 1 contract
Samples: Abl Credit Agreement (Academy Sports & Outdoors, Inc.)
Increased Costs, Illegality, etc. (a) In the event that that:
(xi) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank Required Lenders shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan LIBOR for any Interest Period that, that (A) deposits in the principal amounts of the Loans comprising such LIBOR Loan are not generally available in the relevant market or (B) by reason of any changes arising on or after the Closing DateDate affecting the interbank LIBOR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of LIBOR; or
(ii) a Change in Law occurring at any time, that such Lender or Issuing Bank time after the Closing Date shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, (B) subject any Lender to any Tax (other than (i) Indemnified Taxes indemnifiable under Section 2.14, or (ii) Excluded Taxes) on its loans, loan principal, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, or (C) impose on any Lender or Issuing Bank) the London interbank market any other condition, cost or (2) other circumstances adversely expense affecting this Agreement or LIBOR Loans made by such Lender, which results in the availability cost to such Lender of Term SOFRmaking, converting into, continuing or maintaining LIBOR Loans increasing by an amount or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) any Lender, shall have reasonably determined (which determination shall, absent clearly demonstrable error, be final and conclusive and binding upon all parties hereto), at any time, that the making or continuance of any SOFR LIBOR Loan has become unlawful by as a result of compliance by such Lender in good faith with any Change in Requirement of Law since the Closing Date, (or would conflict with any thereof such Requirement of Law not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after even though the Closing Date that materially adversely affects the availability of SOFRfailure to comply therewith would not be unlawful); then, and in each any such event, such Lender or Issuing Bank Lenders (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (by telephone confirmed in writing) to the Borrower Borrowers and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR LIBOR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower Borrowers and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower Borrowers with respect to such Type of SOFR LIBOR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of BorrowingBorrowers, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower Borrowers shall pay to such Lender or Issuing BankLender, upon promptly (but no later than ten days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower Borrowers by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower Borrowers shall take one of the actions specified in Section 5.01(b2.08(b) as promptly as possible and, in any event, within the time period required by lawapplicable Requirements of Law.
(b) At any time that any SOFR LIBOR Loan is affected by the circumstances described in Section 5.01(a)(ii2.08(a)(ii) or (iii), the Borrower Borrowers may (and in the case of a SOFR LIBOR Loan affected pursuant to Section 5.01(a)(iii2.08(a)(iii) the Borrower shall) either (i1) if the affected SOFR LIBOR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Borrower Borrowers was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.08(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (ii2) if the affected SOFR LIBOR Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.08(b).
(c) If any Lender shall have determined that If, after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to occurring after the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 days promptly (but in any event no later than ten days) after written demand by such Lender (with a copy to the Administrative Agent), the Borrower Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any applicable Requirement of Law as in effect on the Closing Date. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.08(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, in reasonable detail, the basis of the calculation of such additional amounts, which basis must be reasonableBorrowers, although the failure to give any such notice shall not not, subject to Section 2.11, release or diminish any of the Borrower’s Borrowers’ obligations to pay additional amounts pursuant to this Section 5.01(c2.08(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Samples: Term Loan and Guaranty Agreement (Par Pacific Holdings, Inc.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; or
(ii) at any time, after the later of the Closing Date and the date such entity became a Lender hereunder, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to the Loans, including as a result of any SOFR Loans Tax (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (Ax) Indemnified Taxes, (By) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and or (Cz) Connection Income Taxes) because of (1) any Change in Law change since the Closing Date date hereof in any Applicable Law (includingor in the interpretation or administration thereof and including the introduction of any new Applicable Law), but not limited tosuch as, for example, without limitation, a change in requirements for any reserve, special deposit, liquidity or similar official reserve requirements (including any compulsory loan requirementbut excluding changes in the rate of tax on the overall net income of such Lender), insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender or Issuing Bank) or (2) other circumstances adversely affecting the availability of Term SOFR; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of SOFR; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give notice (if by telephone telephone, confirmed in writing) to the Borrower Parent and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) aboveThereafter, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(ii) above, the Borrower Borrowers shall pay to such Lender or Issuing BankLender, upon within 10 Business Days after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower Borrowers by such Lender or Issuing Bank shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law).
(b) At any time that any SOFR Loan is affected by If, after the circumstances described in Section 5.01(a)(ii) or (iii)later of the date hereof and the date such entity becomes a Lender hereunder, the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case adoption of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Applicable Law regarding capital adequacy adequacy, or liquidity any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such a Lender or its parent corporation with any request or directive made or adopted after such date regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, association, central bank, bank or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to 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 corporationparent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 10 days after receipt of written demand by such Lender (with a copy to the Administrative Agent), the Borrower Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the date hereof. Each LenderLender (on its own behalf), upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.07(b), will will, as promptly as practicable upon ascertaining knowledge thereof, give prompt written notice thereof to the BorrowerParent, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, 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 5.01(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.. Without limiting
Appears in 1 contract
Samples: Credit Agreement (TerrAscend Corp.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or and (y) in the case of Sections 5.01(a)(iiclauses (ii) and through (iiiiv) below, any Lender the Required Term Loan Lenders (with respect to Term Loans), Required 2020 Additional Revolving Credit Lenders (with respect to 2020 Letter of Credit Commitments) or Issuing Bank the Required Revolving Credit Lenders (with respect to Revolving Credit Commitments) shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any Adjusted LIBOR Rate or Adjusted Term SOFR Loan Rate, as applicable, for any Interest Period thatthat (x) deposits in the principal amounts and currencies of the Loans comprising such LIBOR Borrowing or SOFR Borrowing, as applicable, are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the interbank LIBOR market or the applicable interbank market, as applicable, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such the definition of Adjusted LIBOR Rate or Adjusted Term SOFR LoanRate, as applicable; or
(ii) at any time, that such Lender or Issuing Bank Lenders shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any LIBOR Loans or SOFR Loans Loans, as applicable, other than with respect to Taxes because of any Change in Law;
(iii) that, due to a Change in Law, which shall subject any such Lenders to any Tax (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A1) Indemnified Taxes, (B2) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and or (C3) Connection Income Other Taxes) because on its loans, loan principal, letters of (1) any Change in Law since the Closing Date (includingcredits, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirement, insurance charge commitments or other assessment) against assets of, deposits with or for the account ofobligations, or credit extended byits deposits, any Lender reserves, other liabilities or Issuing Bank) or (2) other circumstances adversely affecting the availability of Term SOFRcapital attributable thereto; or
(iiiiv) at any time, that the making or continuance of any LIBOR Loan or a SOFR Loan has become unlawful by compliance by such Lender Lenders in good faith with any Change in Law since the Closing Datelaw, governmental rule, regulation, guideline or order (or would conflict with any thereof such governmental rule, regulation, guideline or order not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRinterbank LIBOR market or the applicable interbank market, as applicable; (such Loans, “Impacted Loans”), then, and in each any such event, such Lender Required Term Loan Lenders, Required 2020 Additional Revolving Credit Lenders or Issuing Bank Required Revolving Credit Lenders, as applicable (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of LIBOR Loans or SOFR Loans Loans, as applicable, shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of LIBOR Loans or SOFR Loans Loans, as applicable, that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLenders, upon promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender Required Term Loan Lenders, Required 2020 Additional Revolving Credit Lenders or Issuing Bank Required Revolving Credit Lenders, as applicable, in their reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank Lenders for such actual increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLenders, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank Lenders shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) ), and (z) in the case of Section 5.01(a)(iiisubclauses (iii) and (iv) above, the Borrower shall take one of the actions specified in subclause (x) or (y), as applicable, of Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by law. Notwithstanding the foregoing, if the Administrative Agent has made the determination described in Section 2.10(a)(i)(x), the Administrative Agent, in consultation with the Borrower and the affected Lenders, may establish an alternative interest rate for the Impacted Loans (which rate shall not be negative), in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (x) of the first sentence of the immediately preceding paragraph, (2) the Administrative Agent or the affected Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (3) any Lender determines that any law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrower written notice thereof.
(b) At any time that any LIBOR Loan or SOFR Loan Loan, as applicable, is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii), (iii) or (iiiiv), the Borrower may (and in the case of a LIBOR Loan or SOFR Loan Loan, as applicable affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower or (iv) shall) either (ix) if a Notice of Borrowing or Notice of Conversion or Continuation with respect to the affected LIBOR Loan or SOFR Loan is then being made Loan, as applicable, has been submitted pursuant to a BorrowingSection 2.3 but the affected LIBOR Loan or SOFR Loan, as applicable, has not been funded or continued, cancel such requested Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank Lenders pursuant to Section 5.01(a)(ii2.10(a)(ii), (iii) or (iii)iv) or (y) (i) if the affected LIBOR Loan is then outstanding, cancel said Borrowingupon at least three Business Days’ notice to the Administrative Agent, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested convert each such LIBOR Loan as into an ABR Loan, Loan or (ii) if the affected SOFR Loan is then outstanding, upon at least one three U.S. Government Securities Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to occurring after the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the actual rate of return on such Lender’s or its parent corporationparent’s or its Affiliate’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation or its Affiliate could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such actual additional amount or amounts as will compensate such Lender or its parent corporation for such actual reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any law, rule or regulation as in effect on the Closing Date or to the extent such Lender is not imposing such charges on, or requesting such compensation from, borrowers (similarly situated to the Borrower hereunder) under comparable syndicated credit facilities similar to the Credit Facilities. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent promptly following receipt of such notice.
(d) Notwithstanding If the foregoingAdministrative Agent shall have received notice from the Required Term Loan Lenders or Required Revolving Credit Lenders, as applicable, that the Adjusted LIBOR Rate or the Adjusted Term SOFR Rate, as applicable, determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as certified by such Lenders) of making or maintaining its affected LIBOR Loans or SOFR Loans, as applicable, during such Interest Period, the provisions of Section 3.01(aAdministrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the Lenders as soon as practicable thereafter (which notice shall include supporting calculations in reasonable detail). If such notice is given, (i) shall apply with respect any LIBOR Loan or SOFR Loan, as applicable, requested to a Benchmark Transaction Event.
(e) Failure or delay be made on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver first day of such Lender’s Interest Period shall be made an ABR Loan, (ii) any Loans that were to have been converted on the first day of such Interest Period to LIBOR Loans or Issuing Bank’s SOFR Loans, as applicable, shall be continued as an ABR Loan and (iii) any outstanding LIBOR Loans or SOFR Loans, as applicable, shall be converted, on the first day of such Interest Period, to ABR Loans. Until such notice has been withdrawn by the Administrative Agent, no further LIBOR Loans or SOFR Loans, as applicable, shall be made or continued as such, nor shall the Borrower have the right to demand such compensation; provided that the Borrower shall not be required convert ABR Loans to compensate a Lender LIBOR Loans or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing BankSOFR Loans, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereofapplicable.
Appears in 1 contract
Samples: Joinder Agreement and Amendment No. 6 (BrightSpring Health Services, Inc.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the applicable Administrative Agent or (y) in the case of Sections 5.01(a)(iiclauses (ii), (iii) and (iiiiv) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan LIBOR Rate for any Interest Period that, or the BA Rate for any BA Equivalent Interest Period that (x) deposits in the principal amounts and currencies of the Loans comprising such LIBOR Borrowing or BA Rate Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the interbank LIBOR or bankers’ acceptances market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of “LIBOR Rate” or “BA Rate”; or
(ii) at any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR LIBOR Loans or BA Equivalent Loans or Letters of Credit (other than any increased cost increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income attributable to Taxes) because of (1x) any Change in Law since the Closing Date (includingLaw), but not limited tosuch as, for example, without limitation, a change in requirements for any reserveofficial reserve requirements, special deposit, liquidity or similar requirements and/or (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) or (2y) other circumstances adversely affecting the availability interbank LIBOR or bankers’ acceptances market or the position of Term SOFRsuch Lender in such market; or
(iii) at any time, that, as a result of any Change in Law after the date hereof, such Lender shall incur any new or incremental Taxes with respect to any Loan or Letter of Credit or any transaction contemplated hereunder (except for Indemnified Taxes covered by Section 4.5 or any Excluded Tax payable by such Lender); or
(iv) at any time, that the making or continuance of any SOFR LIBOR Loan or BA Equivalent Loans has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Datelaw, governmental rule, regulation, guideline or order (or would conflict with any thereof such governmental rule, regulation, guideline or order not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date date hereof that materially and adversely affects the availability of SOFRinterbank LIBOR or bankers’ acceptances market; then, and in each any such event, such Lender or Issuing Bank (or the applicable Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower Borrowers and to the applicable Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, LIBOR Loans or BA Equivalent Loans in the affected Type of SOFR Loans applicable currency shall no longer be available until such time as the applicable Administrative Agent notifies the applicable Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the such Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the applicable Borrower with respect to such Type of SOFR LIBOR Loans or BA Equivalent Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the applicable Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the applicable Borrower shall pay to such Lender or Issuing BankLender, upon promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the applicable Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiisubclause (iii) above, the applicable Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any SOFR LIBOR Loan or BA Equivalent Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower applicable Borrower(s) may (and in the case of a SOFR LIBOR Loan or BA Equivalent Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if the affected SOFR LIBOR Loan or BA Equivalent Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the such Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (iiy) if the affected SOFR LIBOR Loan denominated in Dollars or BA Equivalent Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan or BA Equivalent Loan into a Canadian Prime Rate Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b)2.10(b) or (z) in the case of any LIBOR Loan denominated in an Alternative Currency, repay such LIBOR Loan at the end of the then current Interest Period.
(c) If any Change in Law relating to capital adequacy or liquidity of any Lender shall have determined that after the Closing Date, or compliance by any Lender or its parent with any Change in Law regarding relating to capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s or its Affiliate’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation or its Affiliate could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 days promptly after demand by such Lender (with a copy to the Administrative Agent), the applicable Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the applicable Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the applicable Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to It is understood that this Section 5.01 2.10 shall not constitute a waiver of such Lender’s apply to (i) Taxes indemnifiable under Section 4.5 or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.(ii)
Appears in 1 contract
Samples: Abl Credit Agreement (Univar Inc.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of due to a Change in Law occurring at any changes arising time on or after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for which Change in this Agreement for such SOFR Loan; or
(ii) at any time, that such Lender or Issuing Bank Law shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, (B) subject any Lender to any Tax with respect to any Credit Document, any LIBOR DIP Loan made by it, Letters of Credit, Commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, or (C) impose on any Lender or Issuing Bankthe London interbank market any other condition, cost or expense affecting this Agreement or LIBOR DIP Loans made by such Lender, which results in (x) an increase in the cost to such Lender of making, converting into, continuing or maintaining DIP Loans or participating in Letters of Credit (in each case hereunder) by an amount which such Lender in its sole discretion deems material or (2y) other circumstances adversely affecting a reduction in the availability of Term SOFRamounts received or receivable by such Lender hereunder with respect to the foregoing; or
(iiiii) at any time, that the making or continuance of any SOFR LIBOR DIP Loan has become unlawful by as a result of compliance by such Lender in good faith with any Change in Requirement of Law since the Closing Date, (or would conflict with any thereof such Requirement of Law not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after even though the Closing Date that materially adversely affects the availability of SOFRfailure to comply therewith would not be unlawful); then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) Lenders shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, clause (y) in the case of Section 5.01(a)(iii) above, the Borrower shall pay to such Lender Lender, promptly (but no later than fifteen days (or Issuing Bank, upon such later date as may be agreed by the Administrative Agent in its sole discretion)) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (zy) in the case of Section 5.01(a)(iiiclause (ii) above, the Borrower shall take one of the actions specified in Section 5.01(b) 2.10(b), as promptly as possible and, in any event, within the time period required by lawapplicable Requirements of Law.
(b) At any time that any SOFR LIBOR DIP Loan is affected by the circumstances described in Section 5.01(a)(ii2.1(a)(i) or (iiiii), the Borrower may (and in the case of a SOFR LIBOR DIP Loan affected pursuant to Section 5.01(a)(iii2.1(a)(ii) the Borrower shall) either (i) if the affected SOFR LIBOR DIP Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(i) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ii) or (ii) if the affected SOFR LIBOR DIP Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR DIP Loan into an ABR DIP Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by requirements of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to requirements occurring after the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and liquidityor liquidity requirements), then from time to time, within 15 promptly (but in any event no later than fifteen days (or such later date as may be agreed by the Administrative Agent in its sole discretion)) after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any applicable Requirement of Law as in effect on the Closing Date (except as otherwise set forth in the definition of Change in Law). Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Samples: Senior Secured Super Priority Debtor in Possession Credit Agreement (Denbury Resources Inc)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent Required Lenders or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank Lender, shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan LIBOR for any Interest Period that, that (A) deposits in the principal amounts of the Loans comprising such LIBOR Loan are not generally available in the relevant market or (B) by reason of any changes arising on or after the Closing DateEffective Date affecting the interbank LIBOR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of LIBOR; or
(ii) that, due to a Change in Law occurring at any timetime after the Effective Date, that such Lender or Issuing Bank which Change in Law shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, (B) subject any Lender to any Tax with respect to any Loan Document or any LIBOR Loan made by it (other than (i) Taxes indemnifiable under Section 2.17, or (ii) Excluded Taxes), or (C) impose on any Lender or Issuing Bank) the London interbank market any other condition, cost or (2) other circumstances adversely expense affecting this Agreement or LIBOR Loans made by such Lender, which results in the availability cost to such Lender of Term SOFRmaking, converting into, continuing or maintaining LIBOR Loans increasing by an amount or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) at any time, that the making or continuance of any SOFR LIBOR Loan has become unlawful by as a result of compliance by such Lender in good faith with any Change in Requirement of Law since the Closing Date, (or would conflict with any thereof such Requirement of Law not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after even though the Closing Date that materially adversely affects the availability of SOFRfailure to comply therewith would not be unlawful); then, and in each any such event, such Lender or Issuing Bank Lenders (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR LIBOR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR LIBOR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than ten days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawapplicable Requirements of Law.
(b) At any time that any SOFR LIBOR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR LIBOR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (i1) if the affected SOFR LIBOR Loan is then being made pursuant to a Borrowingborrowing, cancel such borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (ii2) if the affected SOFR LIBOR Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Effective Date, any Change in Law regarding relating to capital adequacy or liquidity by of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having occurring after the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Effective Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 days promptly (but in any event no later than ten days) after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any applicable Requirement of Law as in effect on the Effective Date. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, in reasonable detail, the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-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 (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent Required Lenders or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank Lender, as applicable, shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan Eurodollar Rate for any Interest Period that, that (x) deposits in the principal amounts of the Loans comprising any Eurodollar Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of Eurodollar Rate; or
(ii) at any timethat, that such Lender or Issuing Bank due to a Change in Law, which shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender; (B) subject any Lender or Issuing Bankto any tax (other than (1) taxes indemnified under Section 5.4, (2) taxes described in clause (A), (B) or (2C) of Section 5.4(a) or (3) taxes described in clause (f) of Section 5.4) on its loans, letters of credits, commitments or other circumstances adversely obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (C) impose on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender, which results in the availability cost to such Lender of Term SOFRmaking, converting into, continuing or maintaining Eurodollar Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) at any time, time after the Closing Date that the making or continuance of any SOFR Eurodollar Loan has become unlawful by as a result of compliance by such Lender in good faith with any Change in Applicable Law since the Closing Date, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRinterbank Eurodollar market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Required Lenders, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent Required Lenders no longer exist (which notice the Required Lenders agree to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of SOFR Eurodollar Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than 10 Business Days) after 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 Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawApplicable Law.
(b) At any time that any SOFR Eurodollar Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Eurodollar Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if the affected SOFR Eurodollar Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected SOFR Eurodollar Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR Eurodollar Loan into an ABR Loan, if applicable; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Daterequirements, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s capital or assets as a consequence of such XxxxxxLender’s or Letter of Credit Issuer’s commitments or obligations hereunder to a level below that which such Lender or its Letter of Credit Issuer or their respective parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 days promptly (but no later than 10 Business Days) after written demand by such Lender or Letter of Credit Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer such additional amount or amounts as will compensate such Lender or its Letter of Credit Issuer or their respective parent corporation for such reduction, it being understood and agreed, however, that a Lender or Letter of Credit Issuer shall not be entitled to such compensation as a result of such Lender’s or Letter of Credit Issuer’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the Closing Date except as a result of a Change in Law. Each LenderLender or Letter of Credit Issuer, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, Borrower (on its own behalf) which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding This Section 2.10 shall not apply to taxes to the foregoing, the provisions extent duplicative of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event5.4.
(e) Failure or delay on The agreements in this Section 2.10 shall survive the part termination of any this Agreement and the payment of the Loans and all other amounts payable hereunder.
(f) Notwithstanding the foregoing, no Lender or Issuing Bank Letter of Credit Issuer shall be entitled to demand seek compensation pursuant under this Section 2.10 unless such Lender or Letter of Credit Issuer is generally seeking compensation from other similarly situated borrowers in the U.S. leveraged loan market with respect to its similarly affected commitments, loans and/or participations under agreements with such borrowers having provisions similar to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof2.10.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank the Required Lenders shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any Adjusted Term SOFR Loan Rate or Adjusted Daily Simple SOFR for any Interest Period that, that (x) deposits in the principal amounts and currencies of the Revolving Credit Loans comprising such SOFR Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the SOFR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such the definition of Term SOFR LoanRate or Daily Simple SOFR, as applicable; or
(ii) at any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any attributable to (Ai) Indemnified TaxesTaxes and Taxes indemnifiable under Section 5.4, (Bii) net income Taxes and franchise and excise Taxes (imposed in lieu of net income Taxes) imposed on any Agent or Lender or (iii) Taxes described in included under clauses (bc) through (df) of the definition of “Excluded Taxes and (C) Connection Income Taxes”) because of (1x) any Change in Law change since the Closing Date in any Applicable Law (includingor in the interpretation or administration thereof and including the introduction of any new Applicable Law), but not limited tosuch as, for example, without limitation, a change in requirements for any reserveofficial reserve requirements, special deposit, liquidity or similar requirements and/or (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) or (2y) other circumstances adversely affecting the availability SOFR market or the position of Term SOFRsuch Lender in such market; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by as a result of compliance by such Lender in good faith with any Change in Applicable Law since the Closing Date, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRSOFR market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowingas applicable, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, of or a different method of calculating, interest or otherwise otherwise, as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiisubclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawApplicable Law.
(ba) At any time that any SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Loan Loan, affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if the affected SOFR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected SOFR Loan is then then-outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, Agent require the affected Lender or Issuing Bank to Convert convert each such SOFR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(ca) If any Lender shall have determined that If, after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to occurring after the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s or its Affiliates’ capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation or any Affiliate thereof could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any Applicable Law as in effect on the Closing Date. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Samples: Credit Agreement (Vistra Corp.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) belowany Lender, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of due to a Change in Law occurring at any changes arising time or after the Closing Funding Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for which Change in this Agreement for such SOFR Loan; or
(ii) at any time, that such Lender or Issuing Bank Law shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, (B) subject any Lender to any Tax with respect to any Credit Document or any LIBOR Loan made by it (other than (i) Taxes indemnifiable under Section 5.4, or (ii) Excluded Taxes), or (C) impose on any Lender or Issuing Bankthe London interbank market any other condition, cost or expense affecting this Agreement or LIBOR Loans made by such Lender, which results in the cost to such Lender of making, converting into, continuing or maintaining LIBOR Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or (2) other circumstances adversely affecting the availability of Term SOFRamounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iiiii) at any time, that the making or continuance of any SOFR LIBOR Loan has become unlawful by as a result of compliance by such Lender in good faith with any Change in Requirement of Law since the Closing Date, (or would conflict with any thereof such Requirement of Law not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after even though the Closing Date that materially adversely affects the availability of SOFRfailure to comply therewith would not be unlawful); then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, clause (y) in the case of Section 5.01(a)(iii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than fifteen days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (zy) in the case of Section 5.01(a)(iiiclause (ii) above, the Borrower shall take one of the actions specified in Section 5.01(b) 2.10(b), as promptly as possible and, in any event, within the time period required by lawapplicable Requirements of Law.
(b) At any time that any SOFR LIBOR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(i) or (iii)ii)0, the Borrower may (and in the case of a SOFR LIBOR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(ii) the Borrower shall) either (i) if the affected SOFR LIBOR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(i) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ii) or (ii) if the affected SOFR LIBOR Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Funding Date, any Change in Law regarding relating to capital adequacy or liquidity by requirements of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having requirements occurring after the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Funding Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and liquidityor liquidity requirements), then from time to time, within 15 days promptly (but in any event no later than fifteen days) after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Xxxxxx’s compliance with, or pursuant to any request or directive to comply with, any applicable Requirement of Law as in effect on the Funding Date (except as otherwise set forth in the definition of Change in Law). Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.”
Appears in 1 contract
Samples: Credit Agreement
Increased Costs, Illegality, etc. (a) In On any date for determining the LIBOR Rate for any Interest Period, any request for an Alternative Currency Loan or a conversion of ABR Loans to LIBOR Loans or a continuation of any of such Loans, as applicable, (i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (A) no Successor Rate for the Relevant Rate for the applicable currency has been determined in accordance with Section 2.10(e) and the circumstances under clause (i) of Section 2.10(e) or the Scheduled Unavailability Date has occurred with respect to such Relevant Rate (as applicable), or (B) adequate and reasonable means do not otherwise exist for determining the Relevant Rate for the applicable currency for any determination date(s) or requested Interest Period, as applicable, with respect to a proposed LIBOR Loan or an Alternative Currency Loan or in connection with an existing or proposed ABR Loan, or (ii) the Administrative Agent or the Required Lenders determine that for any reason that the Relevant Rate with respect to a proposed Loan for any requested Interest Period or determination date(s) does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Loans in the affected currencies, as applicable, or to convert ABR Loans to LIBOR Loans, shall be suspended in each case to the extent of the affected Alternative Currency Loans or Interest Period or determination date(s), as applicable, and (y) in the event of a determination described in the preceding sentence with respect to the LIBOR Rate component of the ABR, the utilization of the LIBOR Rate component in determining the ABR shall be suspended, in each case until the Administrative Agent (or, in the case of a determination by the Required Lenders described in clause (ii) of this Section 2.10(a), until the Administrative Agent upon instruction of the Required Lenders) revokes such notice.
(b) Upon receipt of such notice, (i) the Borrower may revoke any pending request for a Borrowing of, or conversion to LIBOR Loans, or Borrowing of, or continuation of Alternative Currency Loans to the extent of the affected Alternative Currency Loans or Interest Period or determination date(s), as applicable or, failing that, will be deemed to have converted such request into a request for a Borrowing of ABR Loans denominated in Dollars in the Dollar Equivalent of the amount specified therein and (ii)(A) any outstanding LIBOR Loans shall be deemed to have been converted to ABR Loans on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day) and (B) any outstanding affected Alternative Currency Loans, at the Borrower’s election, shall either (1) be converted into a Borrowing of ABR Loans denominated in Dollars in the Dollar Equivalent of the amount of such outstanding Alternative Currency Loan immediately, in the case of an Alternative Currency Daily Rate Loan or at the end of the applicable Interest Period (or the next succeeding Business Day if such day is not a Business Day), in the case of an Alternative Currency Term Rate Loan or (2) be prepaid in full prior to the applicable conversion; provided that if no election is made by the Borrower (x) in the case of Section 5.01(a)(i) belowan Alternative Currency Daily Rate Loan, by the Administrative Agent date that is three Business Days after receipt by the Borrower of such notice or (y) in the case of Sections 5.01(a)(ii) and (iii) belowan Alternative Currency Term Rate Loan, any Lender or Issuing Bank shall have determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining by the interest rate applicable to any SOFR Loan for any last day of the current Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Alternative Currency Term Rate Loan; or
(ii) at any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (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) or (2) other circumstances adversely affecting the availability of Term SOFR; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of SOFR; then, and in each such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give notice (by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing Banks). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(ii) above, the Borrower shall pay be deemed to such Lender or Issuing Bank, upon written demand therefor, such additional amounts have elected clause (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iii1) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b).
(c) If any Lender shall have determined that If, after the Closing Fourth Restatement Effective Date, any Change in Law regarding relating to capital adequacy or liquidity by adequacy requirements of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having adequacy requirements occurring after the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Fourth Restatement Effective Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 days promptly after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reasonably determined reduction; provided that to the extent any increased costs or reductions are incurred by any Lender as a result of (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 after the Fourth Restatement Effective Date, then such Lender shall be compensated pursuant to this Section 2.10(c) only if such Lender imposes such charges under other syndicated credit facilities containing provisions similar to this Section 2.10(c) involving similarly situated borrowers that such Lender is a lender under. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding anything to the foregoingcontrary in this Agreement or any other Credit Documents:
(i) On March 5, 2021 the Financial Conduct Authority (“FCA”), the provisions regulatory supervisor of Section 3.01(aLIBOR’s administrator (“IBA”), announced in a public statement the future cessation or loss of representativeness of overnight/Spot Next, 1-week, 1-month, 2-month, 3-month, 6-month and 12- month U.S. dollar LIBOR tenor settings. On the earlier of (A) shall apply the date that all Available Tenors of U.S dollar LIBOR have permanently or indefinitely ceased to be provided by IBA or have been announced by the FCA pursuant to public statement or publication of information to be no longer representative and (B) the Early Opt-in Effective Date in respect of a SOFR Early Opt-in, if the then-current Relevant Rate applicable to Dollars is LIBOR, the Benchmark Replacement will replace such Relevant Rate with respect to Dollars for all purposes hereunder and under any Credit Document in respect of any setting of such Relevant Rate on such day and all subsequent settings without any amendment to, or further action or consent of any other party to this Agreement or any other Credit Document. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a Benchmark Transaction Eventmonthly basis.
(eii) Failure (x) Upon (A) the occurrence of a Benchmark Transition Event or delay (B) a determination by the Administrative Agent in consultation with the Borrower that neither of the alternatives under clause (A) of the definition of Benchmark Replacement are available, the Benchmark Replacement will replace the then-current Relevant Rate with respect to Dollars for all purposes hereunder and under any Credit Document in respect of any Relevant Rate setting at or after 5:00 p.m. on the part fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any Lender other party to, this Agreement or Issuing Bank any other Credit Document so long as the Administrative Agent has not received, by such time, written notice of objection to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensationBenchmark Replacement from Lenders comprising the Required Lenders; provided that solely in the event that the then-current Relevant Rate at the time of such Benchmark Transition Event is not a SOFR-based rate, the Benchmark Replacement therefor shall be determined in accordance with clause (A) of the definition of Benchmark Replacement unless the Administrative Agent determines in consultation with the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and neither of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions alternative rates is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereofavailable.
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Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):that:
(i) on a Change in Law occurring at any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of any changes arising time after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; or
(ii) at any time, that such Lender or Issuing Bank Interim Facility Effective Date shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any New Money Lender, (B) subject any New Money Lender to any Tax (other than (x) Indemnified Taxes or Issuing BankOther Taxes indemnifiable under Section 2.13 and (y) Excluded Taxes) on its loans, loan principal, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, or (C) impose on any New Money Lender any other condition, cost or expense affecting this Agreement, which, in the case of clause (A), (B) or (2) other circumstances adversely affecting C), results in the availability cost to such New Money Lender of Term SOFR; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful maintaining Loans increasing by compliance an amount or the amounts received or receivable by such New Money Lender in good faith hereunder with any Change in Law since respect to the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of SOFRforegoing shall be reduced; then, and in each any such event, such New Money Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give written notice (by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksNew Money Lenders). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(ii) aboveThereafter, the Borrower shall pay to such Lender or Issuing BankNew Money Lender, upon promptly (but no later than ten (10) days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such New Money Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such New Money Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such New Money Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law).
(b) At any time that any SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii)If, the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b).
(c) If any Lender shall have determined that after the Closing Interim Facility Effective Date, any Change in Law regarding relating to capital adequacy or liquidity by of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, New Money Lender or compliance by such any New Money Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having occurring after the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Interim Facility Effective Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such New Money Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxNew Money Lender’s commitments or obligations hereunder with respect to Loans to a level below that which such New Money Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such New Money Lender’s or its parent corporationparent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 days promptly (but in any event no later than ten (10) days) after written demand by such New Money Lender (with a copy to the Administrative Agent), the Borrower shall pay to such New Money Lender such additional amount or amounts as will compensate such New Money Lender or its parent corporation for such reduction. Each New Money Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.09(b), will give prompt written notice thereof to the Borrower, which notice shall set forth, in reasonable detail, the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.09(b) upon the subsequent receipt of such notice.
(dc) Notwithstanding the foregoing, the provisions of Section 3.01(a) No Roll-Up Lender shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of have any Lender or Issuing Bank to demand compensation pursuant to rights under this Section 5.01 shall not constitute a waiver 2.09 in respect of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270Roll-day period referred to above shall be extended to include the period of retroactive effect thereofUp Loans.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Term Loan Credit Agreement (Sanchez Energy Corp)
Increased Costs, Illegality, etc. (a) In Without limiting Section 2.09 of this Agreement, in the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent Required Lenders or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank other Recipient, shall have determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):
): (i) on any date for determining the interest rate applicable to any SOFR Eurocurrency Loan for any Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Eurocurrency Loan; or
or (ii) at any time, that such Lender or Issuing Bank other Recipient shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank other Recipient deems material with respect to any SOFR Eurocurrency Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of “Excluded Taxes Taxes” and (C) Connection Income Taxes) because of (1x) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (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 Bankother Recipient, but, in all events, excluding reserves already includable in the interest rate applicable to such Eurocurrency Loan pursuant to this Agreement) or (2y) other circumstances adversely affecting the availability London interbank market (other than as contemplated in Section 2.09 of Term SOFRthis Agreement) or the position of such Lender or other Recipient in any such market; or
or (iii) at any time, that the making or continuance of any SOFR Eurocurrency Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability London interbank market (other than as contemplated in Section 2.09 of SOFRthis Agreement); then, and in each such event, such Lender or Issuing Bank other Recipient (or the Administrative Agent Required Lenders in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or time and (2) within 10 ten (10) Business Days of the date on which such event no longer exists give notice (by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing Banksother Recipients). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR Eurocurrency Loans shall no longer be available until such time as the Required Lenders notify the Borrower, the Administrative Agent notifies (who shall promptly notify the Borrower and the Lenders Lenders) or Issuing Banks other Recipients that the circumstances giving rise to such notice by the Administrative Agent Required Lender no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Eurocurrency Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the BorrowerBorrower in the case of a Loan denominated in Dollars, be deemed converted into a Notice of Borrowing for ABR Base Rate Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing Bankother Recipient, upon 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 Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporation’s capital or assets as a consequence of such Xxxxxx’s commitments or obligations hereunder to 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 and liquidity), then from time to time, within 15 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, in reasonable detail, the basis of the calculation of such additional amounts, which basis must be reasonable, 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 5.01(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.rate
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(iiclauses (ii) and through (iiiiv) below, any Lender or Issuing Bank Lender, shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan Eurocurrency Rate for any Interest Period that, that (x) deposits in the principal amounts of the Loans comprising any Borrowing of Fixed Loans are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the London interbank eurocurrency market, the market for loans based on “CDOR” or “BBSY” rate or the market for any similar rate for any other Alternative Currency, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of the Eurocurrency Rate; or
(ii) at any timethat, that such Lender or Issuing Bank due to a Change in Law, which shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender or Issuing Bank(except any reserve requirement taken into account in determining the Statutory Reserves); (B) subject any Lender to any Tax (other than (1) Taxes indemnifiable under Section 5.4 or (2) Excluded Taxes) on its loans, loan principal, letters of credits, commitments or other circumstances adversely obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (C) impose on any Lender, the London interbank eurocurrency market, the market for loans based on “CDOR” or “BBSY” rate or the market for any similar rate for any other Alternative Currency any other condition, cost or expense affecting this Agreement or Eurocurrency Loans or Term SOFR Loans made by such Lender (other than Taxes), which results in the availability cost to such Lender of making, converting into, continuing or maintaining Eurocurrency Loans or Term SOFR; orSOFR Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced;
(iii) at any timetime after the Closing Date, that the making or continuance of any Eurocurrency Loan or Term SOFR Loan Loans has become unlawful by compliance by such Lender in good faith with any Change in Applicable Law since the Closing Date, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability London interbank eurocurrency market, the market for loans based on “CDOR” or “BBSY” rate or the market for any similar rate for any other Alternative Currency; or
(iv) at any time that the respective Alternative Currency (other than Dollars, Euros, Pounds Sterling or Canadian Dollars) is not available in sufficient amounts to fund any Borrowing of SOFRsuch Alternative Currency Loans requested pursuant to Section 2.1; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give written notice (by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (xw) in the case of Section 5.01(a)(iclause (i) or (iv) above, in the affected Type of SOFR event any Eurocurrency Loans are so affected, the applicable Eurocurrency Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and (A) any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of SOFR the Eurocurrency Loans that have not yet been incurred, Converted or Continued Incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (yB) in the case of Section 5.01(a)(iiany affected Eurocurrency Borrowing in Dollars, such Borrowing shall be converted to an ABR Borrowing at the end of the applicable Interest Period and (C) in the case of any affected Eurocurrency Borrowing in an Alternative Currency, at the Borrower’s election, such Borrowing shall either (1) be converted into ABR Borrowing denominated in Dollars in the Dollar Equivalent of the amount of such outstanding Eurocurrency Loan at the end of the applicable Interest Period or (2) be prepaid at the end of the applicable Interest Period in full; provided that if no election is made by the Borrower by the earlier of (x) the date that is three Business Days after receipt by the Borrower of such notice and (y) the last day of the current Interest Period for the applicable Eurocurrency Loan, the Borrower shall be deemed to have elected clause (1) above, (x) in the case of clause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than ten Business Days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) ), and (zy) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawApplicable Law. Subject to Section 2.10(d), if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Term SOFR” cannot be determined pursuant to the definition thereof on any given day, the interest rate on ABR Loans shall be determined by the Administrative Agent without reference to clause (c) of the definition of “ABR” until the Administrative Agent revokes such determination. Upon any prepayment or conversion pursuant to this Section 2.10(a), the Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 2.10.
(b) At any time that any Eurocurrency Loan or Term SOFR Loan Loan, as applicable, is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iiia)(iii), the Borrower may (and in the case of a Eurocurrency Loan or Term SOFR Loan Loan, as applicable, affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if the affected Eurocurrency Loan or Term SOFR Loan Loan, as applicable, is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, a)(iii) or (iiy) if the affected Eurocurrency Loan or Term SOFR Loan Loan, as applicable, is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such Eurocurrency Loan or Term SOFR Loan Loan, as applicable, into an ABR Loan, if applicable; providedprovided that (A) if the circumstances described in Section 2.10(a)(iii) apply to any Alternative Currency Loan, howeverthe Borrower may, that in lieu of taking the actions described above, maintain such Alternative Currency Loan outstanding, in which case the applicable Eurocurrency Rate or Term SOFR shall be determined on the basis provided in the definition of the relevant Eurocurrency Rate or Term SOFR Loan, as applicable, unless the maintenance of such Alternative Currency 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 (B) if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that after the Closing DateIf, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, requirements has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s capital or assets as a consequence of such XxxxxxLender’s or Letter of Credit Issuer’s commitments or obligations hereunder to a level below that which such Lender or its Letter of Credit Issuer or their respective parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s policies with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly (but no later than ten Business Days) after written demand by such Lender or Letter of Credit Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer such additional amount or amounts as will compensate such Lender or its Letter of Credit Issuer or their respective parent corporation for such reduction, it being understood and agreed, however, that a Lender or Letter of Credit Issuer shall not be entitled to such compensation as a result of such Xxxxxx’s or Letter of Credit Issuer’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the Closing Date except as a result of a Change in Law. Each LenderLender or Letter of Credit Issuer, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, Borrower (on its own behalf) which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Samples: Credit Agreement (MultiPlan Corp)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank the Required Lenders shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any Term SOFR Loan Rate or Daily Simple SOFR for any Interest Period that, that (x) deposits in the principal amounts and currencies of the Revolving Credit Loans comprising such SOFR Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the SOFR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such the definition of Term SOFR LoanRate or Daily Simple SOFR, as applicable; or
(ii) at any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any attributable to (Ai) Indemnified Taxes andor Taxes indemnifiable under Section 5.4, and (ii) net income Taxes and franchise and excise Taxes (imposed in lieu of net income Taxes, ) imposed on any Agent or Lender or (Biii) Taxes described in included under clauses (bc) through (df) of the definition of “ Excluded Taxes and (C) Connection Income Taxes”) because of (1x) any Change in Law change since the Closing Date in any Applicable Law (includingor in the interpretation or administration thereof and including the introduction of any new Applicable Law), but not limited tosuch as, for example, without limitation, a change in requirements for any reserveofficial reserve requirements, special deposit, liquidity or similar requirements and/or (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) or (2y) other circumstances adversely affecting the availability SOFR market or the position of Term SOFRsuch Lender in such market; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by as a result of compliance by such Lender in good faith with any Change in Applicable Law since the Closing Date, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRSOFR market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such AMERICAS 111453311 circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowingas applicable, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, of or a different method of calculating, interest or otherwise otherwise, as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiisubclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawApplicable Law.
(b) At any time that any SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Loan Loan, affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if the affected SOFR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected SOFR Loan is then then-outstanding, upon at least one three (3) Business Day’s Days’ notice to the Administrative Agent, Agent require the affected Lender or Issuing Bank to Convert convert each such SOFR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to occurring after the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s or its Affiliates’ capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation or any Affiliate thereof could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any Applicable Law as in effect on the Closing Date. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Samples: Credit Agreement (Vistra Corp.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent Required Lenders or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan Eurodollar Rate for any Interest Period that, that (x) deposits in the principal amounts of the Loans comprising any Eurodollar Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateEffective Date affecting the interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of Eurodollar Rate; or
(i) (ii) at any timethat, that such Lender or Issuing Bank due to a Change in Law, which shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender; (B) subject any Lender or Issuing Bankto any tax (other than (1) taxes indemnified under Section 5.4, (2) taxes described in clause (A), (B) or (2C) of Section 5.4(a) or (3) taxes described in clause (f) of Section 5.4) on its loans, letters of credits, commitments or other circumstances adversely obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (C) impose on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender, which results in the availability cost to such Lender of Term SOFRmaking, converting into, continuing or maintaining Eurodollar Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(ii) (iii) at any time, time after the Effective Date that the making or continuance of any SOFR Eurodollar Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing DateApplicable Law, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Effective Date that materially and adversely affects the availability of SOFRinterbank Eurodollar market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Required Lenders, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent Required Lenders no longer exist (which notice the Required Lenders agree to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of SOFR Eurodollar Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than 10 Business Days) after 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 Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written LPL – Conformed A&R Credit Agreement notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (zzy) in the case of Section 5.01(a)(iiiclause (iiiii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawApplicable Law.
(b) At any time that any SOFR Eurodollar Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Eurodollar Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iiiii) the Borrower shall) either (ix) if the affected SOFR Eurodollar Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected SOFR Eurodollar Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR Eurodollar Loan into an ABR Loan, if applicable; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Daterequirements, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s capital or assets as a consequence of such XxxxxxLender’s or Letter of Credit Issuer’s commitments or obligations hereunder to a level below that which such Lender or its Letter of Credit Issuer or their respective parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s policies with respect to capital adequacy and liquidity), then from time to time, within 15 days promptly (but no later than 10 Business Days) after written demand by such Lender or Letter of Credit Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer such additional amount or amounts as will compensate such Lender or its Letter of Credit Issuer or their respective parent corporation for such reduction, it being understood and agreed, however, that a Lender or Letter of Credit Issuer shall not be entitled to such compensation as a result of such Lender’s or Letter of Credit Issuer’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the Effective Date except as a result of a Change in Law. Each LenderLender or Letter of Credit Issuer, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, Borrower (on its own behalf) which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding If prior to the foregoingcommencement of any Interest Period for a Eurodollar Loan:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining LIBOR, as applicable (including, without limitation, because the provisions LIBO Screen Rate is not available or published on a current basis), for such Interest Period; or
(ii) the Administrative Agent is advised by the Required Lenders that LIBOR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of Section 3.01(amaking or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period; then the Administrative Agent shall apply with respect give notice thereof to the Borrower and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (A) any Notice of Conversion or Continuation that requests the conversion of any Loan to, or continuation of any Loan as, a Benchmark Transaction EventEurodollar Loan shall be ineffective and (B) if any Notice of Borrowing requests Revolving Credit Loans as Eurodollar Loans, such Borrowing shall be made as ABR Loans; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then all other Types of Borrowings shall be permitted.
(e) Failure If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in Section 2.10(d)(i) have arisen and such circumstances are unlikely to be temporary or delay on (ii) the part circumstances set forth in Section 2.10(d)(i) have not arisen but the supervisor for the administrator of any Lender the LIBO Screen Rate or Issuing Bank to demand compensation pursuant to this Section 5.01 a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Screen Rate shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall not be required endeavor to compensate establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining a Lender or Issuing Bank pursuant rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable. Notwithstanding anything to the contrary in Section 13.1, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders of each Class stating that such Lender or Issuing BankRequired Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (e) (but, as in the case may be, notifies the Borrower of the Change circumstances described in Law giving rise clause (ii) of the first sentence of this Section 2.10(e), only to the extent the LIBO Screen Rate for such increased costs Interest Period is not available or reductions published at such time on a current basis), (x) any Notice of Conversion or Continuation that requests the conversion of any Loans to, or continuation of any Loans as, Eurodollar Loans shall be ineffective, and (y) if any Notice of Borrowing requests Revolving Credit Loans as Eurodollar Loans, such Lender’s or Issuing Bank’s intention to claim compensation thereforBorrowing shall be made as ABR Loans; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above alternate rate of interest shall be extended less than zero, such rate shall be deemed to include be zero for the period purposes of retroactive effect thereofthis Agreement.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent Required Lenders or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank Lender, shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan LIBOR Rate for any Interest Period that, prior to the earlier of (x) the occurrence of a Demand Failure Event and (y) the Interim Loan Conversion Date that (A) deposits in the principal amounts of the Senior Interim Loans comprising such LIBOR Borrowing are not generally available in the relevant market or (B) by reason of any changes arising on or after the Closing DateDate affecting the interbank LIBOR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of LIBOR Rate; or
(ii) that, due to a Change in Law occurring at any timetime or after the Closing Date and prior to the earlier of (x) the occurrence of a Demand Failure Event and (y) the Interim Loan Conversion Date, that such Lender or Issuing Bank which Change in Law shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, (B) subject any Lender to any Tax with respect to any Loan Document or any LIBOR Loan made by it (other than (i) Taxes indemnifiable under Section 5.4 or (ii) Excluded Taxes), or (C) impose on any Lender or Issuing Bankthe London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or (2) other circumstances adversely affecting LIBOR Loans made by such Lender, which results in the availability cost to such Lender of Term SOFRmaking, converting into, continuing or maintaining LIBOR Loans hereunder increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) at any timetime prior to the earlier of (x) the occurrence of a Demand Failure Event and (y) the Interim Loan Conversion Date, that the making or continuance of any SOFR LIBOR Loan has become unlawful by as a result of compliance by such Lender in good faith with any Change in Requirement of Law since the Closing Date, (or would conflict with any thereof such Requirement of Law not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after even though the Closing Date that materially adversely affects the availability of SOFRfailure to comply therewith would not be unlawful); then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR LIBOR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR LIBOR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than fifteen days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawapplicable Requirements of Law.
(b) At any time that any SOFR LIBOR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR LIBOR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (i) if the affected SOFR LIBOR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (ii) if the affected SOFR LIBOR Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b)2.10(b) .
(c) If any Lender shall have determined that If, after the Closing Date and prior to the earlier of (x) the occurrence of a Demand Failure Event and (y) the Interim Loan Conversion Date, any Change in Law regarding relating to capital adequacy or liquidity by of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to occurring after the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 days promptly (but in any event no later than fifteen days) after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any applicable Requirement of Law as in effect on the Closing Date. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-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 (x) in the case of Section 5.01(a)(iclause(i) below, the Administrative Agent or and (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender the Required Term Loan Lenders (with respect to Term Loans) or Issuing Bank the Required Revolving Credit Lenders (with respect to Revolving Credit Commitments) shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any Eurocurrency Rate, Term SOFR Loan or Term RFR for any Interest Period thatthat (x) deposits in the principal amounts and currencies of the Loans comprising such Eurocurrency Borrowing, Term SOFR Borrowing or Term RFR Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the interbank LIBOR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of Eurocurrency Rate or Term RFR; or
(ii) at any time, that such Lender or Issuing Bank Lenders shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any Eurocurrency Rate Loans, Term SOFR Loans or Term RFR Loans (including any increased costs or reductions attributable to Taxes, other than any increased cost increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxes, (B) attributable to Taxes described in clauses (bi) through or (ii) of paragraph (d) of the definition of Excluded Taxes and (C) Connection Income Taxesthis Section 2.10) because of (1x) any Change in Law since the Closing Date and/or (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (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) or (2y) other circumstances adversely affecting the availability interbank LIBOR market or the position of Term SOFRsuch Lender in such market; or
(iii) at any time, that the making or continuance of any SOFR Eurocurrency Rate Loan or Term RFR Loan has become unlawful by compliance by such Lender Lenders in good faith with any Change in Law since the Closing Datelaw, governmental rule, regulation, guideline or order (or would conflict with any thereof such governmental rule, regulation, guideline or order not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRinterbank LIBOR market; then, and in each any such event, such Lender Required Term Loan Lenders or Issuing Bank Required Revolving Credit Lenders, as applicable (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower Holdings and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of Eurocurrency Rate Loans, Term SOFR Loans or Term RFR Loans shall no longer be available until such time as the Administrative Agent notifies Holdings and the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Continuation or Conversion given by Holdings or the Borrower with respect to such Type of Eurocurrency Rate Loans, Term SOFR Loans or Term RFR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of Holdings or the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLenders, upon promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender Required Term Loan Lenders or Issuing Bank Required Revolving Credit Lenders, as applicable, in their reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank Lenders for such actual increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLenders, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank Lenders shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiisubclause (iii) above, the Borrower shall take one of the actions specified in subclause (x) or (y), as applicable, of Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Eurocurrency Rate Loan, Term SOFR Loan or Term RFR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Eurocurrency Rate Loan or Term RFR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if the affected Eurocurrency Rate Loan, Term SOFR Loan or Term RFR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank Lenders pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected Eurocurrency Rate Loan, Term SOFR Loan or Term RFR Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such Eurocurrency Rate Loan, Term SOFR Loan or Term RFR Loan into an ABR Loan or Daily Simple RFR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to occurring after the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the actual rate of return on such Lender’s or its parent corporationparent’s or its Affiliate’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation or its Affiliate could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such actual additional amount or amounts as will compensate such Lender or its parent corporation for such actual reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any law, rule or regulation as in effect on the Closing Date or to the extent such Lender is not imposing such charges on or requesting such compensation from borrowers similarly situated to the Borrower hereunder. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to It is understood that this Section 5.01 2.10 shall not constitute a waiver of such Lender’s apply to (i) Indemnified Taxes or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender Other Taxes or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof(ii) Excluded Taxes.
Appears in 1 contract
Samples: Credit Agreement (RBC Bearings INC)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or and (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank the Required Term Loan Lenders (with respect to Term Loans) shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan Eurocurrency Rate for any Interest Period that, that (x) deposits in the principal amounts and currencies of the Loans comprising such Eurocurrency Loan are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the applicable interbank market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of Eurocurrency Rate; or
(ii) at any time, that such Lender or Issuing Bank Lenders shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Eurocurrency Loans (including any increased costs or reductions attributable to Taxes, other than any increased cost increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) attributable to Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income or Other Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (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) or (2) other circumstances adversely affecting the availability of Term SOFRLaw; or
(iii) at any time, that the making or continuance of any SOFR Eurocurrency Loan has become unlawful by compliance by such Lender Lenders in good faith with any Change in Law since the Closing Datelaw, governmental rule, regulation, guideline or order (or would conflict with any thereof such governmental rule, regulation, guideline or order not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRapplicable interbank market; (such Loans, “Impacted Loans”), then, and in each any such event, such Lender or Issuing Bank Required Term Loan Lenders (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR Eurocurrency Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Eurocurrency Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLenders, upon promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank Required Term Loan Lenders in their reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank Lenders for such actual increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLenders, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank Lenders shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) ), and (z) in the case of Section 5.01(a)(iiisubclause (iii) above, the Borrower shall take one of the actions specified in subclause (x) or (y), as applicable, of Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawlaw and the provisions of Section 1.19 shall apply. Subject to the provisions of Section 1.19, notwithstanding the foregoing, if the Administrative Agent has made the determination described in Section 2.10(a)(i)(x), the Administrative Agent, in consultation with the Borrower and the affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (x) of the first sentence of the immediately preceding paragraph, (2) the Administrative Agent or the affected Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (3) any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrower written notice thereof.
(b) At any time that any SOFR Eurocurrency Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Eurocurrency Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if a Notice of Borrowing or Notice of Conversion or Continuation with respect to the affected SOFR Eurocurrency Loan is then being made has been submitted pursuant to a BorrowingSection 2.3 but the affected Eurocurrency Loan has not been funded or continued, cancel such requested Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank Lenders pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected SOFR Eurocurrency Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR Eurocurrency Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to occurring after the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the actual rate of return on such Lender’s or its parent corporationparent’s or its Affiliate’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation or its Affiliate could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such actual additional amount or amounts as will compensate such Lender or its parent corporation for such actual reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any law, rule or regulation as in effect on the Closing Date or to the extent such Lender is not imposing such charges on, or requesting such compensation from, borrowers (similarly situated to the Borrower hereunder) under comparable syndicated credit facilities similar to the Credit Facilities. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent promptly following receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Samples: Credit Agreement (Skillsoft Corp.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):event:
(i) on any date for determining the interest rate applicable Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that prior to any SOFR Loan for the commencement of any Interest Period that, by reason for a Borrowing of any changes arising after the Closing DateTerm SOFR Term Loans, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR LoanTerm SOFR; or
(ii) at the Administrative Agent is advised by the Required Lenders that Term SOFR for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period; then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any time, Notice of Conversion/Continuation that such Lender or Issuing Bank shall incur increased costs or reductions in requests the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate conversion of any Borrowing to, or continuation of any Borrowing as, a Borrowing of a Term SOFR Term Loan shall be ineffective and (Aii) Indemnified Taxesif any Notice of Borrowing requests a Borrowing of a Term SOFR Term Loan, (B) Taxes described in clauses such Borrowing shall be made as a Borrowing of a Base Rate Term Loan.
(b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) If any Change in Law since the Closing Date shall:
(includingi) impose, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements 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;
(ii) impose on any Lender or Issuing Bankthe applicable offshore interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or (2) other circumstances adversely affecting the availability of Term SOFRLoans made by such Lender; or
(iii) at subject any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of SOFR; then, and in each such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(ito any Taxes (other than (A) aboveIndemnified Taxes, (B) shall Excluded Taxes or (1C) Other Taxes) on its loans, loan principal, commitments, or promptly following such date other obligations, or time its deposits, reserves, other liabilities or capital attributable thereto; and (2) within 10 Business Days the result of any of the date on which foregoing shall be to increase the cost to such event no longer exists give notice (by telephone confirmed in writing) to the Borrower and to Lender or the Administrative Agent of making, continuing, converting or maintaining any Term Loan (or of maintaining its obligation to make any such determination (which notice Term Loan) or to reduce the amount of any sum received or receivable by such Lender or the Administrative Agent shall promptly transmit to each hereunder (whether of the other Lenders principal, interest or Issuing Banksotherwise). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies then the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(ii) above, the Borrower shall will pay to such Lender or Issuing Bankthe Administrative Agent, upon written demand thereforas the case may be, such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to will compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require as the affected Lender case may be, for such additional costs incurred or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b)reduction suffered.
(c) If any Lender shall have determined determines that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, requirements has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporation’s capital or assets on the capital of such Lender’s holding company, if any, as a consequence of this Agreement or the Term Loans made by such Xxxxxx’s commitments or obligations hereunder Lender, to a level below that which such Lender or its parent corporation such Lender’s holding company could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationXxxxxx’s policies and the policies of such Xxxxxx’s holding company with respect to capital adequacy and liquidity), then from time to time, within 15 days after demand by such Lender (with a copy to the Administrative Agent), time the Borrower shall will pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation such Lender’s holding company for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, in reasonable detail, the basis of the calculation of such additional amounts, which basis must be reasonable, 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 5.01(c) upon the subsequent receipt of such noticereduction suffered.
(d) Notwithstanding the foregoingIf 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 Term Loans, or to determine or charge interest rates based upon SOFR, the provisions Term SOFR Reference Rate or, the Term SOFR Rate, or any Governmental Authority has imposed material restrictions on the authority of Section 3.01(a) such Lender to purchase or sell, or to take deposits of, U.S. Dollars in the applicable offshore interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation of such Lender to make or continue Term SOFR Term Loans or to convert Base Rate Term Loans to Term SOFR Term Loans shall apply be suspended until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with respect a copy to a Benchmark Transaction Eventthe Administrative Agent), prepay or, if applicable, convert all Term SOFR Term Loans of such Lender to Base Rate Term Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Term SOFR Term Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Term SOFR Term Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
(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 2.10, 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 Borrower and shall be conclusive absent manifest error. The Borrower 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) Failure or delay on the part of any Lender or Issuing Bank the Administrative Agent to demand compensation pursuant to this Section 5.01 2.10 shall not constitute a waiver of such Lender’s or Issuing Bankthe Administrative Agent’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank the Administrative Agent pursuant to this Section 5.01 2.10 for any increased costs or reductions incurred more than 270 180 days prior to the date that such Lender or Issuing Bankthe Administrative Agent, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bankthe Administrative Agent’s intention to claim compensation therefor; provided further provided, further, that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270180-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Increased Costs, Illegality, etc. NY\6379601.11
(a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank Lender, shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan Eurodollar Rate for any Interest Period that, that (x) deposits in the principal amounts of the Loans comprising any Eurodollar Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of Eurodollar Rate; or
(ii) at any timethat, due to a Change in Law that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender or Issuing Bank(except any reserve requirement taken into account in determining the Statutory Reserves); (B) subject any Lender to any tax (other than (1) taxes indemnified under Section 5.4, (2) taxes described in clause (A), (B) or (2C) of Section 5.4(a) or (3) taxes described in Section 5.4(f)) on its loans, loan principal, letters of credits, commitments or other circumstances adversely obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (C) impose on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender, the availability cost to such Lender of Term SOFRmaking, converting into, continuing or maintaining Eurodollar Loans or participating in Letters of Credit (in each case hereunder) increases by an amount that such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) at any timetime after the Closing Date, that the making or continuance of any SOFR Eurodollar Loan has become unlawful by compliance by such Lender in good faith with any Change in Applicable Law since the Closing Date, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRinterbank Eurodollar market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of SOFR Eurodollar Loans that have not yet been incurred, Converted or Continued Incurred shall be deemed rescinded by the Borrower orBorrower, (y) NY\6379601.11 in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, clause (y) in the case of Section 5.01(a)(iiii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than ten Business Days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawApplicable Law.
(b) At any time that any SOFR Eurodollar Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Eurodollar Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if the affected SOFR Eurodollar Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected SOFR Eurodollar Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR Eurodollar Loan into an ABR Loan, if applicable; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, requirements has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s capital or assets as a consequence of such XxxxxxLender’s or Letter of Credit Issuer’s commitments or obligations hereunder to a level below that which such Lender or its Letter of Credit Issuer or their respective parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s policies with respect to capital adequacy and liquidity), then from time to time, within 15 days promptly (but no later than ten Business Days) after written demand by such Lender or Letter of Credit Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer such additional amount or amounts as will compensate such Lender or its Letter of Credit Issuer or their respective parent corporation for such reduction, it being understood and agreed, however, that a Lender or Letter of Credit Issuer shall not be entitled to such compensation as a result of such Lender’s or Letter of Credit Issuer’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the Closing Date except as a result of a Change in Law. Each LenderLender or Letter of Credit Issuer, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, Borrower (on its own behalf) which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s NY\6379601.11 obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding This Section 2.10 shall not apply to taxes to the foregoing, the provisions extent duplicative of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event5.4.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to The agreements in this Section 5.01 2.10 shall not constitute a waiver survive the termination of such Lender’s or Issuing Bank’s right to demand such compensation; provided that this Agreement and the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower payment of the Change in Law giving rise to such increased costs or reductions Loans and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereofall other amounts payable hereunder.
Appears in 1 contract
Samples: Credit Agreement (Amsurg Corp)
Increased Costs, Illegality, etc. (a) In Without limiting Section 2.09 of this Agreement, in the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent Required Lenders or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank other Recipient, shall have determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Eurocurrency Loan for any Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Eurocurrency Loan; oror #4842-1976-9300 #4848-6974-4858
(ii) at any time, that such Lender or Issuing Bank other Recipient shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank other Recipient deems material with respect to any SOFR Eurocurrency Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of “Excluded Taxes Taxes” and (C) Connection Income Taxes) because of (1x) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (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 Bankother Recipient, but, in all events, excluding reserves already includable in the interest rate applicable to such Eurocurrency Loan pursuant to this Agreement) or (2y) other circumstances adversely affecting the availability London interbank market (other than as contemplated in Section 2.09 of Term SOFRthis Agreement) or the position of such Lender or other Recipient in any such market; or
(iii) at any time, that the making or continuance of any SOFR Eurocurrency Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability London interbank market (other than as contemplated in Section 2.09 of SOFRthis Agreement); then, and in each such event, such Lender or Issuing Bank other Recipient (or the Administrative Agent Required Lenders in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or time and (2) within 10 ten (10) Business Days of the date on which such event no longer exists give notice (by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing Banksother Recipients). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR Eurocurrency Loans shall no longer be available until such time as the Required Lenders notify the Borrower, the Administrative Agent notifies (who shall promptly notify the Borrower and the Lenders Lenders) or Issuing Banks other Recipients that the circumstances giving rise to such notice by the Administrative Agent Required Lender no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Eurocurrency Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the BorrowerBorrower in the case of a Loan denominated in Dollars, be deemed converted into a Notice of Borrowing for ABR Base Rate Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing Bankother Recipient, upon 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 Lender or Issuing Bank other Recipient shall determine) as shall be required to compensate such Lender or Issuing Bank other Recipient for such increased costs or reductions in amounts receivable hereunder (a written notice as to the additional amounts owed to such Lender or Issuing Bankother Recipient, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank other Recipient shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b3.01(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any SOFR Eurocurrency Loan is affected by the circumstances described in Section 5.01(a)(ii3.01(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Eurocurrency Loan affected pursuant to Section 5.01(a)(iii3.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Eurocurrency Loan is then being made #4842-1976-9300 #4848-6974-4858 pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank other Recipient pursuant to Section 5.01(a)(ii3.01(a)(ii) or (iii), cancel said Borrowing, or, in the case of any BorrowingBorrowing of a Loan denominated in Dollars, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Base Rate Loans or require the affected Lender or Issuing Bank other Recipient to make its requested Loan as an ABR a Base Rate Loan, or (ii) if the affected SOFR Eurocurrency Loan is then outstandingoutstanding and denominated in Dollars, upon at least one three (3) Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank other Recipient to Convert each such SOFR Eurocurrency Loan into an ABR a Base Rate Loan or (iii) if the affected Eurocurrency Loan is then outstanding and is a Loan, bear interest at such rate as the Required Lenders shall determine adequately and fairly reflects the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period plus the applicable interest rate set forth in Section 2.09(b); provided, however, that if more than one Lender or Issuing Bank other Recipient is affected at any time, then all affected Lenders or Issuing Banks other Recipients must be treated the same pursuant to this Section 5.01(b3.01(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporation’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could would 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 and liquidity), then from time to time, within 15 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c3.01(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, in reasonable detail, the basis of the calculation of such additional amounts, which basis must be reasonable, 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 5.01(c3.01(c) upon the subsequent receipt of such notice.
(d) Notwithstanding anything in this Agreement to the foregoingcontrary, the provisions (i) no Lender shall be entitled to compensation or payment or reimbursement of other amounts under Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 3.01 for any increased costs amounts incurred or reductions incurred accruing more than 270 180 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies giving of notice to the Borrower of additional costs or other amounts of the nature described in such Sections (provided, that if such additional costs or other amounts arose as a result of a Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is that was retroactive, then the 270-such 180 day period referred to above shall be extended to include the period of retroactive effect thereof), and (ii) no Lender shall demand compensation for any reduction referred to in Section 3.01(c) if it shall not at the time be the general policy or practice of such Lender to demand such compensation, payment or reimbursement in similar circumstances under comparable provisions of other credit agreements.
Appears in 1 contract
Samples: Priming Facility Credit Agreement (GTT Communications, Inc.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; or
(ii) at any time, after the later of the Closing Date and the date such entity became a Lender hereunder, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to the Loans, including as a result of any SOFR Loans Tax (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (Ax) Indemnified Taxes, (By) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and or (Cz) Connection Income Taxes) because of (1) any Change in Law change since the Closing Date date hereof in any Applicable Law (includingor in the interpretation or administration thereof and including the introduction of any new Applicable Law), but not limited tosuch as, for example, without limitation, a change in requirements for any reserve, special deposit, liquidity or similar official reserve requirements (including any compulsory loan requirementbut excluding changes in the rate of tax on the overall net income of such Lender), insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender or Issuing Bank) or (2) other circumstances adversely affecting the availability of Term SOFR; or
(iii) at any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of SOFR; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give notice (if by telephone telephone, confirmed in writing) to the Borrower Parent and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) aboveThereafter, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(ii) above, the Borrower 21029590V.1 Borrowers shall pay to such Lender or Issuing BankLender, upon within 10 Business Days after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing Bank, showing the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower Borrowers by such Lender or Issuing Bank shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iii) above, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by law).
(b) At any time that any SOFR Loan is affected by If, after the circumstances described in Section 5.01(a)(ii) or (iii)later of the date hereof and the date such entity becomes a Lender hereunder, the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case adoption of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Applicable Law regarding capital adequacy adequacy, or liquidity any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such a Lender or its parent corporation with any request or directive made or adopted after such date regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, association, central bank, bank or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to 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 corporationparent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 10 days after receipt of written demand by such Lender (with a copy to the Administrative Agent), the Borrower Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the date hereof. Each LenderLender (on its own behalf), upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.07(b), will will, as promptly as practicable upon ascertaining knowledge thereof, give prompt written notice thereof to the BorrowerParent, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts. Without limiting Section 2.07(d), which basis must be reasonable, although the failure to give any such notice with respect to a particular event shall not release or diminish any of the Borrower’s Borrowers’ obligations to pay additional amounts pursuant to this Section 5.01(c2.07(b) upon for amounts accrued or incurred after the subsequent receipt date of such noticenotice with respect to such event. Notwithstanding anything herein to the contrary, (x) the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act and all rules, regulations, orders, requests, guidelines or directives 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 or other foreign regulatory authorities, in each case pursuant to Basel III, in each case, are deemed to have been adopted and to have taken effect after the Closing Date.
(c) This Section 2.07 shall not apply to Taxes to the extent duplicative of Section 4.04. In addition, this Section 2.07 shall not apply to any demand made after the 180th day following the requesting Lxxxxx’s knowledge that it would be entitled to any such amounts.
(d) If any Lender shall give notice to Parent that such Lender is entitled to receive and is requesting payments under this Section 2.07 or requires Borrowers to pay additional amounts pursuant to Section 4.04 (any such Lender, an “Increased Cost Lender”), then Borrowers may, at their sole expense and effort, permanently replace such Increased Cost Lender with one or more substitute Lenders reasonably acceptable to Administrative Agent (each, a “Replacement Lender”), and such Increased Cost Lender shall have no right to refuse to be replaced hereunder. Such notice to replace the Increased Cost Lender shall specify an effective date for such replacement, which date shall not be sooner than five Business Days and not be later than 10 Business Days after the date such notice is given, provided that (i) such Increased Cost Lender shall have received payment of an amount equal to the outstanding Obligations payable to it from the assignee (to the extent of outstanding principal and accrued interests and fees) or Borrowers (in the case of all other amounts) and (ii) such assignment does not conflict with Applicable Law. Notwithstanding anything to the foregoingcontrary herein, a Lender shall not be
21029590V.1 required to make any such assignment pursuant to this Section 2.07(d) if, prior to the effective date for such replacement, as a result of a waiver by such Lender or otherwise, the provisions of circumstances entitling Borrowers to require such assignment pursuant to this Section 3.01(a2.07(d) shall apply with respect cease to a Benchmark Transaction Eventapply.
(e) Failure or delay on Prior to the part effective date of any Lender or Issuing Bank to demand compensation such replacement pursuant to this Section 5.01 2.07(d), the Increased Cost Lender and each Replacement Lender shall not constitute a waiver execute and deliver an Assignment and Acceptance, subject only to the Increased Cost Lender being repaid all Obligations owed to it through the effective date of the replacement. If the Increased Cost Lender shall refuse or fail to execute and deliver any such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days Assignment and Acceptance prior to the effective date that of such replacement, the Increased Cost Lender shall be deemed to have executed and delivered such Assignment and Acceptance. The replacement of any Increased Cost Lender shall be made in accordance with the terms of Section 12.06.
(f) A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or Issuing Bankits holding company, as the case may be, notifies as specified in Section 2.07(a) or 2.07(b) of this Section and delivered to the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further thatBorrower, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereofconclusive absent manifest error.
Appears in 1 contract
Samples: Credit Agreement and Security Agreements (TerrAscend Corp.)
Increased Costs, Illegality, etc. (a) In the event that (x) If any Change in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have determined on a reasonable basis (which determination Law shall, absent manifest error, be final and conclusive and binding upon all parties hereto)::
(i) on impose, modify or deem applicable any date reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for determining the interest rate applicable to account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in Adjusted Term SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR LoanRate); or
(ii) at subject any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans Taxes (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Non-Excluded Taxes, (B) Taxes described in clauses (bii) through (div) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (includingon its Loans, but not limited toCommitments, a change in requirements for any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirement, insurance charge or other assessment) against assets of, deposits with or for the account ofobligations, or credit extended byits deposits, any Lender reserves, other liabilities or Issuing Bank) or (2) other circumstances adversely affecting the availability of Term SOFRcapital attributable thereto; or
(iii) at impose on any timeLender any other condition, that the making cost or continuance of any SOFR Loan has become unlawful by compliance expense (other than Taxes) affecting this Agreement or Loans made by such Lender in good faith with any Change in Law since or participation therein, and the Closing Date, or would conflict with any thereof not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of SOFR; then, and in each such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days any of the date on which such event no longer exists give notice (by telephone confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing Banks). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued foregoing shall be deemed rescinded by to increase the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(ii) above, the Borrower shall pay cost to such Lender or Issuing Bank, upon written demand therefor, any Lender of making or maintaining any Loan or of maintaining its obligation to make any such additional amounts (in the form of an increased rate ofLoan, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (a written notice as to increase the additional amounts owed cost to such Lender or Issuing Bankany Lender of participating in, showing or to reduce the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower amount of any sum received or receivable by such Lender or Issuing Bank shallany Lender hereunder (whether of principal, absent manifest errorinterest or any other amount) then, be final and conclusive and binding upon all parties heretorequest of such Lender, Administrative Borrower, within five (5) and (z) in Business Days of demand therefor, will pay to such Lender, such additional amount or amounts as will compensate such, as the case of Section 5.01(a)(iii) abovemay be, the Borrower shall take one of the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by lawfor such additional costs incurred or reduction suffered.
(b) At any time that any Term SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii2.10(a)(ii), the Administrative Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (iA) if the affected Term SOFR Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Administrative Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (iiB) if the affected Term SOFR Loan is then outstanding, upon at least one three (3) Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such Term SOFR Loan into an ABR Loan; provided, howeverthat if more than one Lender is so affected at any time, then all affected Lenders must be treated in the same manner pursuant to this Section 2.10(b); provided, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Datelater of the date hereof, and that date such entity becomes a Lender hereunder, the adoption of any Change in Applicable Law regarding capital adequacy adequacy, or liquidity any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such a Lender or its parent corporation with any request or directive made or adopted after such date regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, association, central bank, bank or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to 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 corporationparent’s policies with respect to capital adequacy and liquidityadequacy), then from time to time, within 15 five (5) days after written demand by such Lender (with a copy to the Administrative Agent), the Borrower Borrowers, jointly and severally, shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the date hereof. Each LenderLender (on its own behalf), upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will will, as promptly as practicable upon ascertaining knowledge thereof, give prompt written notice thereof to the Administrative Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the . The failure to give any such notice notice, with respect to a particular event, within the time frame specified in Section 2.13, shall not release or diminish any of the Borrower’s obligations Borrowers’ obligation to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon for amounts accrued or incurred after the subsequent receipt date of such noticenotice with respect to such event.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event[Reserved].
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this This Section 5.01 2.10 shall not constitute a waiver of such Lender’s or Issuing Bank’s right apply to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior Taxes to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower extent duplicative of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereofSection 5.04.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties heretohereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period Determination Date that, by reason of any changes arising after the Closing Datedate of this Agreement affecting the interbank eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; orthe definition of “LIBO Rate”;
(ii) at any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender (including Taxes (other than Indemnified Taxes or Issuing Bank deems material Excluded Taxes)) with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) LIBO Rate Loan because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (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) or (2) other circumstances adversely affecting the availability of Term SOFRLaw; or
(iii) at any time, that if the making or continuance of any SOFR LIBO Rate Loan has become been made (x) unlawful by any Change in Law, (y) impossible by compliance by such any Lender in good faith with any Change in Law since the Closing Date, governmental request (whether or would conflict with any thereof not having the force of law but with which such Lender customarily complies, law) or has become (z) impracticable as a result of a contingency occurring after the Closing Date that which materially and adversely affects the availability of SOFRinterbank eurodollar market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or time and (2) within 10 Business Days of the date on which such event no longer exists give notice (by telephone promptly confirmed in writing) to Lead Borrower and, except in the Borrower and 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 Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR LIBO Rate Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing 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/Continuation or Conversion given by the Lead Borrower with respect to such Type of SOFR LIBO Rate Loans that which have not yet been incurred, Converted or Continued incurred (including by way of conversion) shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of BorrowingBorrowers, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall each Borrower, jointly and severally, agrees to pay to such Lender or Issuing BankLender, upon 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 Lender or Issuing Bank in its sole discretion shall determine) as shall be required to compensate such Lender or Issuing Bank 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 Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must shall be reasonable, submitted to the Lead Borrower by such Lender or Issuing Bank and shall, absent manifest error, be final and conclusive and binding upon on all the parties hereto) and ), (z) in the case of Section 5.01(a)(iiiclause (iii) above, the Borrower Borrowers shall take one of the actions specified in Section 5.01(b3.01(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any SOFR LIBO Rate Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii3.01(a)(ii), the Lead Borrower may (may, and in the case of a SOFR LIBO Rate Loan affected pursuant to by the circumstances described in Section 5.01(a)(iii) the 3.01(a)(iii), Lead Borrower shall) , either (ix) if the affected SOFR LIBO Rate Loan is then being made initially or pursuant to a Borrowingconversion, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Lead Borrower was notified by a the affected Lender or Issuing Bank the Administrative Agent pursuant to Section 5.01(a)(ii3.01(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected SOFR LIBO Rate Loan is then outstanding, upon at least one three Business Day’s Days’ written notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each convert such SOFR LIBO Rate Loan into an ABR a Base Rate Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b3.01(b).
(c) If any Lender shall have determined determines that after the Closing Date, Date any Change in Law regarding Law, will have the effect of increasing the amount of capital adequacy or liquidity by any Governmental Authority, central bank required or comparable agency charged by law with the interpretation or administration thereof, or compliance expected to be maintained by such Lender or its parent any corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by controlling such Lender based on the existence of such Lender’s Commitments hereunder or its obligations hereunder, then each Borrower, jointly and severally, agrees to pay to such Lender, upon its written demand therefor, such additional documented amounts as shall be material required to compensate such Lender or such other corporation for the increased cost to such Lender or such other corporation or the reduction in the rate of return on to such Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable; provided that such Lender’s or its parent corporation’s capital or assets as a consequence determination of such Xxxxxx’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoptioncompensation owing under this Section 3.01(c) shall, effectivenessabsent manifest error, change or compliance (taking into consideration such Lender’s or its parent corporation’s policies with respect to capital adequacy be final and liquidity), then from time to time, within 15 days after demand by such Lender (with a copy to conclusive and binding on all the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reductionparties hereto. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c3.01(c), will give prompt written notice thereof to the Lead Borrower, which notice shall set forth, show in reasonable detail, detail the basis of the for calculation of such additional amounts, which basis must be reasonable, 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 5.01(c) upon the subsequent receipt of such notice.
(d) . Notwithstanding the foregoingabove, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank will not be entitled to demand compensation pursuant to for any increased cost or reduction set forth in this Section 5.01 shall not constitute a waiver 3.01 at any time unless it certifies that it is the general practice and policy of such Lender’s or Issuing Bank’s right Lender to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that compensation from similarly situated borrowers in similar circumstances at such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereoftime.
Appears in 1 contract
Samples: Revolving Credit Agreement (Interior Logic Group Holdings, LLC)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, any Lender or Issuing Bank the Required Lenders shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any Adjusted Term SOFR Loan Rate for any Interest Period thatPeriod, that (x) deposits in the principal amounts and currencies of the Loans comprising the applicable Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the interbank SOFR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such the definition of Term SOFR LoanRate; or
(ii) at any time, that such Lender or Issuing Bank shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any Term SOFR Loans (other than any increased cost increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any attributable to (A) Indemnified TaxesTaxes and Taxes indemnifiable under Section 5.4, (B) Other Connection Taxes described in that are imposed on or measured by net income or that are (however denominated) franchise or branch profits Taxes imposed on any Agent or Lender or (C) Taxes included under clauses (b) through (d) of the definition of “Excluded Taxes and (C) Connection Income Taxes”) because of (1x) any Change in Law change since the Closing Date in any Applicable Law (includingor in the interpretation or administration thereof and including the introduction of any new Applicable Law), but not limited tosuch as, for example, without limitation, a change in requirements for any reserveofficial reserve requirements, special deposit, liquidity or similar requirements and/or (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) or (2y) other circumstances adversely affecting the availability interbank SOFR market or the position of Term SOFRsuch Lender in such market; or
(iii) at any time, that the making or continuance of any Term SOFR Loan Loans has become unlawful by as a result of compliance by such Lender in good faith with any Change in Applicable Law since the Closing Date, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRinterbank SOFR market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or shall, within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter, give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of Term SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of Term SOFR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowingas applicable, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, of or a different method of calculating, interest or otherwise otherwise, as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of Section 5.01(a)(iiisubclause (iii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawApplicable Law.
(b) At any time that any Term SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a Term SOFR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if the affected Term SOFR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by receives notice from a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected Term SOFR Loan is then then-outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, Agent require the affected Lender or Issuing Bank to Convert convert each such Term SOFR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to occurring after the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s or its Affiliates’ capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation or any Affiliate thereof could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any Applicable Law as in effect on the Closing Date. Each Lender, upon determining in good faith that any additional amounts will be are payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event[Reserved].
(e) Failure or delay on Notwithstanding the part of any foregoing, no Lender or Issuing Bank to shall demand compensation pursuant to this Section 5.01 2.10 if it shall not constitute a waiver at the time be the general policy or practice of such Lender’s or Issuing Bank’s right Lender to demand such compensation; provided that compensation in substantially the Borrower shall not be required same manner as applied to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereofother similarly situated borrowers under comparable syndicated credit facilities.
Appears in 1 contract
Samples: Credit Agreement (Talen Energy Corp)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Datedue to a Change in Law, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; or
(ii) at any time, that such Lender or Issuing Bank which shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender; (B) subject any Lender or Issuing Bankto any tax (other than (1) taxes indemnified under Section 5.4, (2) taxes described in clause (A), (B) or (2C) of Section 5.4(a)5.4(a) or (3) taxes described in clause (f) of Section 5.4) on its loans, letters of credits, commitments or other circumstances adversely obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (C) impose on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender, which results in the availability cost to such Lender of Term SOFRmaking, converting into, continuing or maintaining Eurodollar Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iiiii) at any time, time after the Effective Date that the making or continuance of any SOFR Eurodollar Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing DateApplicable Law, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Effective Date that materially and adversely affects the availability of SOFRinterbank Eurodollar market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, clause (y) in the case of Section 5.01(a)(iii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than 10 Business Days) after 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 Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (zy) in the case of Section 5.01(a)(iiiclause (ii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by lawApplicable Law.
(b) At any time that any SOFR Eurodollar Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii2.10(a), the Borrower may (and in the case of a SOFR Eurodollar Loan affected pursuant to Section 5.01(a)(iii2.10(a)(ii) the Borrower shall) either (ix) if the affected SOFR Eurodollar Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (iiy) if the affected SOFR Eurodollar Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR Eurodollar Loan into an ABR Loan, if applicable; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Daterequirements, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s capital or assets as a consequence of such XxxxxxLender’s or Letter of Credit Issuer’s commitments or obligations hereunder to a level below that which such Lender or its Letter of Credit Issuer or their respective parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s policies with respect to capital adequacy and liquidity), then from time to time, within 15 days promptly (but no later than 10 Business Days) after written demand by such Lender or Letter of Credit Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer such additional amount or amounts as will compensate such Lender or its Letter of Credit Issuer or their respective parent corporation for such reduction, it being understood and agreed, however, that a Lender or Letter of Credit Issuer shall not be entitled to such compensation as a result of such Lender’s or Letter of Credit Issuer’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the Effective Date except as a result of a Change in Law. Each LenderLender or Letter of Credit Issuer, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, Borrower (on its own behalf) which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding If prior to the foregoingcommencement of any Interest Period for a Eurodollar Loan:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining LIBOR, as applicable (including, without limitation, because the provisions LIBO Screen Rate is not available or published on a current basis), for such Interest Period; or
(ii) the Administrative Agent is advised by the Required Lenders that LIBOR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of Section 3.01(amaking or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period; then the Administrative Agent shall apply with respect give notice thereof to the Borrower and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (A) any Notice of Conversion or Continuation that requests the conversion of any Loan to, or continuation of any Loan as, a Benchmark Transaction EventEurodollar Loan shall be ineffective and (B) if any Notice of Borrowing requests Revolving Credit Loans as Eurodollar Loans, such Borrowing shall be made as ABR Loans; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then all other Types of Borrowings shall be permitted.
(e) Failure If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in Section 2.10(d)(i) have arisen and such circumstances are unlikely to be temporary or delay (ii) the circumstances set forth in Section 2.10(d)(i) have not arisen but the supervisor for the administrator of the LIBO Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Screen Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable. Notwithstanding anything to the contrary in Section 13.1, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders of each Class stating that such Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (e) (but, in the case of the circumstances described in clause (ii) of the first sentence of this Section 2.10(e), only to the extent the LIBO Screen Rate for such Interest Period is not available or published at such time on a current basis), (x) any Notice of Conversion or Continuation that requests the conversion of any Loans to, or continuation of any Loans as, Eurodollar Loans shall be ineffective, and (y) if any Notice of Borrowing requests Revolving Credit Loans as Eurodollar Loans, such Borrowing shall be made as ABR Loans; provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
(f) This Section 2.10 shall not apply to taxes to the extent duplicative of Section 5.4.
(g) The agreements in this Section 2.10 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(h) Notwithstanding the foregoing, no Lender or Letter of Credit Issuer shall be entitled to seek compensation under this Section 2.10 based on the part occurrence of a Change in Law arising solely from the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or any requests, rules, guidelines or directives thereunder or issued in connection therewith, unless such Lender or Issuing Bank Letter of Credit Issuer is generally seeking compensation from other borrowers in the U.S. leveraged loan market with respect to demand compensation pursuant its similarly affected commitments, loans and/or participations under agreements with such borrowers having provisions similar to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof2.10.
Appears in 1 contract
Increased Costs, Illegality, etc. (ai) In the event that (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank Required Lenders shall have reasonably determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; or
(ii) at any time, that such Lender or Issuing Bank Lenders shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (including any increased costs or reductions attributable to Taxes, other than any increased cost increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any attributable to (AI) Indemnified Taxes, (BII) Taxes described in clauses (bii) through (div) of the definition of Excluded Taxes and (CIII) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (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) or (2) other circumstances adversely affecting the availability of Term SOFRLaw; or
(iiiii) at any time, that the making or continuance of any SOFR Loan has become unlawful by compliance by such Lender Lenders in good faith with any Change in Law since the Closing Datelaw, governmental rule, regulation, guideline or order (or would conflict with any thereof such governmental rule, regulation, guideline or order not having the force of law but with which even though the failure to comply therewith would not be unlawful); (such Lender customarily compliesLoans, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of SOFR; “Impacted Loans”), then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) Required Lenders shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower Borrower, and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter Thereafter, (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, clause (y) in the case of Section 5.01(a)(iii) above, the Borrower shall pay to such Lender or Issuing BankLenders, upon promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank the Required Lenders in their reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank Lenders for such actual increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLenders, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank Lenders shall, absent manifest error, be final and conclusive and binding upon all parties hereto) ), and (zy) in the case of Section 5.01(a)(iiisubclause (ii) above, the Borrower shall take one of the actions specified in of Section 5.01(b2.8(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii), the Borrower may (and in the case of a SOFR Loan affected pursuant to Section 5.01(a)(iii) the Borrower shall) either (i) if the affected SOFR Loan is then being made pursuant to a Borrowing, by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (ii) if the affected SOFR Loan is then outstanding, upon at least one Business Day’s notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert each such SOFR Loan into an ABR Loan; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated the same pursuant to this Section 5.01(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporation’s capital or assets as a consequence of such Xxxxxx’s commitments or obligations hereunder to 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 and liquidity), then from time to time, within 15 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, in reasonable detail, the basis of the calculation of such additional amounts, which basis must be reasonable, 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 5.01(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Samples: Bridge Credit Agreement (Xerox Corp)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(iclause (i) below, the Administrative Agent or and (y) in the case of Sections 5.01(a)(iiclauses (ii) and (iii) below, the Required Facility Lenders with respect to any Lender or Issuing Bank Credit Facility shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan LIBOR Rate for any Interest Period that, that (x) deposits in the principal amounts of the Loans comprising such LIBOR Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing DateDate affecting the interbank LIBOR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loanthe definition of LIBOR Rate; or
(ii) at any time, that such Lender or Issuing Bank Lenders shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR LIBOR Loans (including any increased costs or reductions attributable to Taxes, other than any increased cost increase or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any attributable to (AI) Indemnified Taxes, (BII) Taxes described in clauses (bii) through (dv) of the definition of Excluded Taxes and Taxes, (CIII) Connection Income Taxes, or (IV) Other Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for any reserve, special deposit, liquidity or similar requirements (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) or (2) other circumstances adversely affecting the availability of Term SOFRLaw; or
(iii) at any time, that the making or continuance of any SOFR LIBOR Loan has become unlawful by compliance by such Lender Lenders in good faith with any Change in Law since the Closing Datelaw, governmental rule, regulation, guideline or order (or would conflict with any thereof such governmental rule, regulation, guideline or order not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the availability of SOFRinterbank LIBOR market; (such Loans, “Impacted Loans”), then, and in each any such event, such Lender or Issuing Bank Required Facility Lenders (or the Administrative Agent Agent, in the case of Section 5.01(a)(iclause (i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower Borrower, and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(iclause (i) above, the affected Type of SOFR LIBOR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation or Conversion given by the Borrower with respect to such Type of SOFR LIBOR Loans that have not yet been incurred, Converted or Continued incurred shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, (y) in the case of Section 5.01(a)(iiclause (ii) above, the Borrower shall pay to such Lender or Issuing BankLenders, upon promptly after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank Required Facility Lenders in their reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank Lenders for such actual increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLenders, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank Lenders shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) ), and (z) in the case of Section 5.01(a)(iiisubclause (iii) above, the Borrower shall take one of the actions specified in subclause (x) or (y), as applicable, of Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by law. Notwithstanding the foregoing, if the Administrative Agent has made the determination described in Section 2.10(a)(i)(x), the Administrative Agent, in consultation with the Borrower and the affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (x) of the first sentence of the immediately preceding paragraph, (2) the Administrative Agent notifies the Borrower or the applicable Required Facility Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (3) any Lender reasonably determines that any law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrower written notice thereof.
(b) At any time that any SOFR LIBOR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a SOFR LIBOR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if a Notice of Borrowing or Notice of Conversion or Continuation with respect to the affected SOFR LIBOR Loan is then being made has been submitted pursuant to a BorrowingSection 2.3 or Section 2.6, as applicable, but the affected LIBOR Loan has not been funded or continued, cancel such requested Borrowing by giving the Administrative Agent telephonic written notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank Lenders pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loanapplicable, or (iiy) if the affected SOFR LIBOR Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Date, any Change in Law regarding relating to capital adequacy or liquidity by of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to occurring after the Closing Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the actual rate of return on such Lender’s or its parent corporationparent’s or its Affiliate’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation or its Affiliate could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and or liquidity), then from time to time, within 15 days after promptly following written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such actual additional amount or amounts as will compensate such Lender or its parent corporation for such actual reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any law, rule or regulation as in effect on the Closing Date or to the extent such Lender is not imposing such charges on, or requesting such compensation from, borrowers (similarly situated to the Borrower hereunder) under comparable syndicated credit facilities similar to the Credit Facilities. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent promptly following receipt of such notice.
(d) Notwithstanding the foregoing, the provisions Other than as set forth in clause (a)(ii) of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 2.10, it is understood that this Section 2.10 shall not constitute a waiver of such Lender’s or Issuing Bank’s right apply to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereofTaxes.
Appears in 1 contract
Samples: Credit Agreement (Blue Coat, Inc.)
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) belowany Lender, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; or[reserved];
(ii) at any timethat, that such Lender or Issuing Bank due to a Change in Law, which shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended including participation interests in Letters of Credit and Swingline Loans hereunder) by, any Lender; (B) subject any Lender or Issuing Bankto any Tax (other than (1) or Taxes indemnifiable under Section 5.4, (2) Excluded Taxes or (3) Taxes described in Section 5.4(f)) on its loans, loan principal, letters of credits, commitments or other circumstances adversely obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (C) impose on any Lender any other condition, cost or expense affecting this Agreement or Term SOFR Loans made by such Lender (other than Taxes), which results in the availability cost to such Lender of making, converting into, continuing or maintaining Term SOFRSOFR Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iii) at that any time, that the making or continuance of any SOFR Loan Applicable Law has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing Datemade it unlawful, or would conflict with that any thereof not having the force of law but with which such Governmental Authority has asserted that it is unlawful, for any Lender customarily compliesor its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to SOFR or Term SOFR, or has become impracticable as a result of a contingency occurring after the Closing Date that materially adversely affects the availability of to determine or charge interest rates based upon SOFR or Term SOFR; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, clause (y) in the case of Section 5.01(a)(iiii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than ten Business Days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (zy) in the case of Section 5.01(a)(iiiclause (iii) above, (1) any obligation of such Lender to make or continue Term SOFR Loans or to convert Base Rate Loans to Term SOFR Loans shall be suspended, and (2) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Term SOFR component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Term SOFR component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower shall take one of that the actions specified in Section 5.01(b) as promptly as possible and, in any event, within the time period required by lawcircumstances giving rise to such determination no longer exist.
(b) At any time that any Term SOFR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(ii) or (iii), the Borrower may (and in the case of a Term SOFR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(iii) the Borrower shall) either (ix) if the affected Term SOFR Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(ii) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ) or (iiy) if the affected Term SOFR Loan is then outstanding, upon receipt of such notice pursuant to Section 2.10(a), (1) the Borrower shall, upon at least one three Business Day’s Days’ notice and demand from such Lender (with a copy to the Administrative Agent), require at the affected option of the Borrower, prepay or, if applicable, convert all Term SOFR Loans of such Lender or Issuing Bank to Convert each Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Term SOFR component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Term SOFR Loan into an ABR to such day, or, if such Lender may not lawfully continue to maintain such Term SOFR Loan; provided, howeverupon the third Business Day after such notification and (2) if such notice asserts the illegality of such Lender determining or charging interest rates based upon SOFR, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Term SOFR component thereof until the Administrative Agent is advised in writing by such Lender that if more than one it is no longer illegal for such Lender to determine or Issuing Bank is affected at charge interest rates based upon SOFR. Upon any timesuch prepayment or conversion, then all affected Lenders the Borrower shall also pay accrued interest on the amount so prepaid or Issuing Banks must be treated the same converted, together with any additional amounts required pursuant to this Section 5.01(b)2.11.
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Date, requirements has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s capital or assets as a consequence of such XxxxxxLender’s or Letter of Credit Issuer’s commitments or obligations hereunder to a level below that which such Lender or its Letter of Credit Issuer or their respective parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s policies with respect to capital adequacy and or liquidity), then from time to time, within 15 days promptly (but no later than ten Business Days) after written demand by such Lender or Letter of Credit Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer such additional amount or amounts as will compensate such Lender or its Letter of Credit Issuer or their respective parent corporation for such reduction, it being understood and agreed, however, that a Lender or Letter of Credit Issuer shall not be entitled to such compensation as a result of such Lender’s or Letter of Credit Issuer’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the Closing Date except as a result of a Change in Law. Each LenderLender or Letter of Credit Issuer, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, Borrower (on its own behalf) which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding If in connection with any request for a Term SOFR Loan or a conversion of Base Rate Loans to Term SOFR Loans or a continuation of any of such Loans, as applicable, (i) the foregoingAdministrative Agent determines (which determination shall be conclusive absent manifest error) that (A) no Successor Rate has been determined in accordance with Section 2.10(e), and the provisions circumstances under clause (i) of Section 3.01(a2.10(e) shall apply or the Scheduled Unavailability Date has occurred, or (B) adequate and reasonable means do not otherwise exist for determining Term SOFR for any requested Interest Period with respect to a Benchmark Transaction Event.
proposed Term SOFR Loan or in connection with an existing or proposed Base Rate Loan, or (eii) Failure the Administrative Agent or delay on the part Required Lenders determine that for any reason that Term SOFR for any requested Interest Period with respect to a proposed Loan does not adequately and fairly reflect the cost to such Lenders of any Lender funding such Loan, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or Issuing Bank maintain Term SOFR Loans, or to demand compensation pursuant convert Base Rate Loans to Term SOFR Loans, shall be suspended (to the extent of the affected Term SOFR Loans or Interest Periods), and (y) in the event of a determination described in the preceding sentence with respect to the Term SOFR component of the Base Rate, the utilization of the Term SOFR component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (or, in the case of a determination by the Required Lenders described in clause (ii) of this Section 5.01 shall not constitute a waiver 2.10(d), until the Administrative Agent upon instruction of the Required Lenders) revokes such notice. Upon receipt of such Lender’s or Issuing Bank’s right to demand such compensation; provided that notice, (i) the Borrower shall not be required to compensate may revoke any pending request for a Lender Borrowing of, or Issuing Bank pursuant to this Section 5.01 for any increased costs conversion to, or reductions incurred more than 270 days prior continuation of Term SOFR Loans (to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower extent of the Change in Law giving rise to such increased costs affected Term SOFR Loans or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further Interest Periods) or, failing that, if will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above amount specified therein and (ii) any outstanding Term SOFR Loans shall be extended deemed to include have been converted to Base Rate Loans immediately at the period end of retroactive effect thereoftheir respective applicable Interest Period.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) below, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of any changes arising after the Closing Datedue to a Change in Law, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in this Agreement for such SOFR Loan; or
(ii) at any time, that such Lender or Issuing Bank which shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender; (B) subject any Lender or Issuing Bankto any tax (other than (1) taxes indemnified under Section 5.4, (2) taxes described in clause (A), (B) or (2C) of Section 5.4(a) or (3) taxes described in clause (f) of Section 5.4) on its loans, letters of credits, commitments or other circumstances adversely obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (C) impose on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender, which results in the availability cost to such Lender of Term SOFRmaking, converting into, continuing or maintaining Eurodollar Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or the amounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iiiii) at any time, time after the Effective Date that the making or continuance of any SOFR Eurodollar Loan has become unlawful by compliance by such Lender in good faith with any Change in Law since the Closing DateApplicable Law, (or would conflict with any thereof such Applicable Law not having the force of law but with which such Lender customarily complieseven though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Effective Date that materially and adversely affects the availability of SOFRinterbank Eurodollar market; then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, clause (y) in the case of Section 5.01(a)(iii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than 10 Business Days) after 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 Lender or Issuing Bank in its reasonable discretion shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (zy) in the case of Section 5.01(a)(iiiclause (ii) above, the Borrower shall take one of the actions specified in Section 5.01(b2.10(b) as promptly as possible and, in any event, within the time period required by law.Applicable Law. 97 LPL – Conformed A&R Credit Agreement
(b) At any time that any SOFR Eurodollar Loan is affected by the circumstances described in Section 5.01(a)(ii) or (iii2.10(a), the Borrower may (and in the case of a SOFR Eurodollar Loan affected pursuant to Section 5.01(a)(iii2.10(a)(ii) the Borrower shall) either (ix) if the affected SOFR Eurodollar Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, or (iiy) if the affected SOFR Eurodollar Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR Eurodollar Loan into an ABR Loan, if applicable; provided, however, that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that after the Closing Date, any Change in Law regarding capital adequacy or liquidity by any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, or compliance by such Lender or its parent corporation with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Daterequirements, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s capital or assets as a consequence of such XxxxxxLender’s or Letter of Credit Issuer’s commitments or obligations hereunder to a level below that which such Lender or its Letter of Credit Issuer or their respective parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationLetter of Credit Issuer’s or their respective parent’s policies with respect to capital adequacy and liquidity), then from time to time, within 15 days promptly (but no later than 10 Business Days) after written demand by such Lender or Letter of Credit Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or Letter of Credit Issuer such additional amount or amounts as will compensate such Lender or its Letter of Credit Issuer or their respective parent corporation for such reduction, it being understood and agreed, however, that a Lender or Letter of Credit Issuer shall not be entitled to such compensation as a result of such Lender’s or Letter of Credit Issuer’s compliance with, or pursuant to any request or directive to comply with, any such Applicable Law as in effect on the Effective Date except as a result of a Change in Law. Each LenderLender or Letter of Credit Issuer, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, Borrower (on its own behalf) which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding If prior to the foregoingcommencement of any Interest Period for a Eurodollar Loan:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining LIBOR, as applicable (including, without limitation, because the provisions LIBO Screen Rate is not available or published on a current basis), for such Interest Period; or
(ii) the Administrative Agent is advised by the Required Lenders that LIBOR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of Section 3.01(amaking or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period; then the Administrative Agent shall apply with respect give notice thereof to the Borrower and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (A) any Notice of Conversion or Continuation that requests the conversion of any Loan to, or continuation of any Loan as, a Benchmark Transaction EventEurodollar Loan shall be ineffective and (B) if any Notice of Borrowing requests Revolving Credit Loans as Eurodollar Loans, such Borrowing shall be made as ABR Loans; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then all other Types of Borrowings shall be permitted.
(e) Failure If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in Section 2.10(d)(i) have arisen and such circumstances are unlikely to be temporary or delay (ii) the circumstances set forth in Section 2.10(d)(i) have not arisen but the supervisor for the administrator of the LIBO Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Screen Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable. Notwithstanding anything to the contrary in Section 13.1, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders of each Class stating that such Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (e) (but, in the case of the circumstances described in clause (ii) of the first sentence of this Section 2.10(e), only to the extent the LIBO Screen Rate for such Interest Period is not available or published at such time on a current basis), (x) any Notice of Conversion or Continuation that requests the conversion of any Loans to, or continuation of any Loans as, Eurodollar Loans shall be ineffective, and (y) if any Notice of Borrowing requests Revolving Credit Loans as Eurodollar Loans, such Borrowing shall be made as ABR Loans; provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
(f) This Section 2.10 shall not apply to taxes to the extent duplicative of Section 5.4.
(g) The agreements in this Section 2.10 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(h) Notwithstanding the foregoing, no Lender or Letter of Credit Issuer shall be entitled to seek compensation under this Section 2.10 based on the part occurrence of a Change in Law arising solely from the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or any requests, rules, guidelines or directives thereunder or issued in connection therewith, unless such Lender or Issuing Bank Letter of Credit Issuer is generally seeking compensation from other borrowers in the U.S. leveraged loan market with respect to demand compensation pursuant its similarly affected commitments, loans and/or participations under agreements with such borrowers having provisions similar to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof2.10.
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Increased Costs, Illegality, etc. (a) In the event that (x) in the case of Section 5.01(a)(i) belowany Lender, the Administrative Agent or (y) in the case of Sections 5.01(a)(ii) and (iii) below, any Lender or Issuing Bank shall have reasonably determined on a reasonable basis (which determination shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the interest rate applicable to any SOFR Loan for any Interest Period that, by reason of due to a Change in Law occurring at any changes arising time or after the Closing Funding Date, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for which Change in this Agreement for such SOFR Loan; or
(ii) at any time, that such Lender or Issuing Bank Law shall incur increased costs or reductions in the amounts received or receivable by it hereunder in an amount that such Lender or Issuing Bank deems material with respect to any SOFR Loans (other than any increased cost or reduction in the amount received or receivable resulting from the imposition of or a change in the rate of any (A) Indemnified Taxesimpose, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) because of (1) any Change in Law since the Closing Date (including, but not limited to, a change in requirements for modify or deem applicable any reserve, special deposit, liquidity or similar requirements (including any compulsory loan requirementloan, insurance charge or other assessment) similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, (B) subject any Lender to any Tax with respect to any Credit Document or any LIBOR Loan made by it (other than (i) Taxes indemnifiable under Section 5.4, or (ii) Excluded Taxes), or (C) impose on any Lender or Issuing Bankthe London interbank market any other condition, cost or expense affecting this Agreement or LIBOR Loans made by such Lender, which results in the cost to such Lender of making, converting into, continuing or maintaining LIBOR Loans or participating in Letters of Credit (in each case hereunder) increasing by an amount which such Lender reasonably deems material or (2) other circumstances adversely affecting the availability of Term SOFRamounts received or receivable by such Lender hereunder with respect to the foregoing shall be reduced; or
(iiiii) at any time, that the making or continuance of any SOFR LIBOR Loan has become unlawful by as a result of compliance by such Lender in good faith with any Change in Requirement of Law since the Closing Date, (or would conflict with any thereof such Requirement of Law not having the force of law but with which such Lender customarily complies, or has become impracticable as a result of a contingency occurring after even though the Closing Date that materially adversely affects the availability of SOFRfailure to comply therewith would not be unlawful); then, and in each any such event, such Lender or Issuing Bank (or the Administrative Agent in the case of Section 5.01(a)(i) above) shall (1) on or promptly following such date or within a reasonable time and (2) within 10 Business Days of the date on which such event no longer exists thereafter give notice (if by telephone telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders or Issuing BanksLenders). Thereafter (x) in the case of Section 5.01(a)(i) above, the affected Type of SOFR Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders or Issuing Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Continuation or Conversion given by the Borrower with respect to such Type of SOFR Loans that have not yet been incurred, Converted or Continued shall be deemed rescinded by the Borrower or, in the case of a Notice of Borrowing, shall, at the option of the Borrower, be deemed converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in such Notice of Borrowing, clause (y) in the case of Section 5.01(a)(iii) above, the Borrower shall pay to such Lender or Issuing BankLender, upon promptly (but no later than fifteen days) after receipt of written demand therefor, therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender or Issuing Bank shall determine) as shall be required to compensate such Lender or Issuing Bank for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender or Issuing BankLender, showing in reasonable detail the basis for the calculation thereof, which basis must be reasonable, submitted to the Borrower by such Lender or Issuing Bank shall, absent manifest clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (zy) in the case of Section 5.01(a)(iiiclause (ii) above, the Borrower shall take one of the actions specified in Section 5.01(b) 2.10(b), as promptly as possible and, in any event, within the time period required by lawapplicable Requirements of Law.
(b) At any time that any SOFR LIBOR Loan is affected by the circumstances described in Section 5.01(a)(ii2.10(a)(i) or (iii)ii)0, the Borrower may (and in the case of a SOFR LIBOR Loan affected pursuant to Section 5.01(a)(iii2.10(a)(ii) the Borrower shall) either (i) if the affected SOFR LIBOR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender or Issuing Bank pursuant to Section 5.01(a)(ii2.10(a)(i) or (iii), cancel said Borrowing, or, in the case of any Borrowing, convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans or require the affected Lender or Issuing Bank to make its requested Loan as an ABR Loan, ii) or (ii) if the affected SOFR LIBOR Loan is then outstanding, upon at least one three Business Day’s Days’ notice to the Administrative Agent, require the affected Lender or Issuing Bank to Convert convert each such SOFR LIBOR Loan into an ABR Loan; provided, however, provided that if more than one Lender or Issuing Bank is affected at any time, then all affected Lenders or Issuing Banks must be treated in the same manner pursuant to this Section 5.01(b2.10(b).
(c) If any Lender shall have determined that If, after the Closing Funding Date, any Change in Law regarding relating to capital adequacy or liquidity by requirements of any Governmental Authority, central bank or comparable agency charged by law with the interpretation or administration thereof, Lender or compliance by such any Lender or its parent corporation with any request or directive regarding Change in Law relating to capital adequacy or liquidity (whether or not having requirements occurring after the force of law) of any such authority, central bank, or comparable agency, in each case made subsequent to the Closing Funding Date, has or would have the effect of reducing by an amount reasonably deemed by such Lender to be material to the rate of return on such Lender’s or its parent corporationparent’s capital or assets as a consequence of such XxxxxxLender’s commitments or obligations hereunder to a level below that which such Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance Change in Law (taking into consideration such Lender’s or its parent corporationparent’s policies with respect to capital adequacy and liquidityor liquidity requirements), then from time to time, within 15 days promptly (but in any event no later than fifteen days) after written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent corporation for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any applicable Requirement of Law as in effect on the Funding Date (except as otherwise set forth in the definition of Change in Law). Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 5.01(c2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth, forth in reasonable detail, detail the basis of the calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 5.01(c2.10(c) upon the subsequent receipt of such notice.
(d) Notwithstanding the foregoing, the provisions of Section 3.01(a) shall apply with respect to a Benchmark Transaction Event.
(e) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 5.01 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 5.01 for any increased costs or reductions incurred more than 270 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.”
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