Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent): (i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date affecting the applicable interbank market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or (ii) at any time (but otherwise subject to Section 13.04(b)), that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to (A) a change in the basis of taxation of payments to a Lender of the principal of or interest on the Loans or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or (b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunder), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, the interbank market or the position of such Lender in such market; or (iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order (or would conflict with any governmental rule, regulation, guideline, request or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawful) or (y) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank market; (a) upon the subsequent receipt of such notice) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist. (b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) the Borrower shall) either (x) if the Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b). (c) If any Lender shall have determined after the Effective Date that the adoption or effectiveness after the Effective Date of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such other corporation's capital or assets as a consequence of such Lender's Commitments hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy), then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender such additional amount or amounts as will compensate such Lender or such other corporation for such reduction in the rate of return to such Lender or such other corporation. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any -------------------------------- Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date date of this Agreement affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by or any franchise tax based on the net income or net profits of such Lender, in either case pursuant to the federal laws of the United States of America or pursuant to the laws of the jurisdiction (a) in which it such Lender is organized or in which its such Lender's principal office or applicable lending office is located or (b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business any subdivision thereof or therein), but for the execution or delivery of this Agreement or any other Credit Document or the exercise without duplication of any rights or performance amounts payable in respect of any obligations hereunder or thereunderTaxes pursuant to Section 4.04(a), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone promptly confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower agrees, subject to Section 1.14 (to the extent applicable), to pay to such Lender, upon such Lender's written 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 in its sole discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to the Borrower by such Lender in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Lender, the obligations of such Lender to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein shall be reinstated.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (may, and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) ), the Borrower shall) , either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversionLoan, in the case of the circumstance described in Section 1.10(a)(iii)provided that, shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than -------- one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined determines that after the Effective Date that the adoption or effectiveness after the Effective Date introduction of any applicable law, rule or regulation regarding capital adequacy, or any change thereinin any applicable law or governmental rule, regulation, order, guideline, directive or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of concerning capital adequacy, or any such change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, has or would will have the effect of reducing increasing the rate amount of return capital required or expected to be maintained by such Lender or any corporation controlling such Lender based on such Lender's or such other corporation's capital or assets as a consequence the existence of such Lender's Commitments Revolving Loan Commitment hereunder or its obligations hereunder hereunder, then the Borrower agrees, subject to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance Section 1.14 (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacythe extent applicable), then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender Lender, upon its written demand therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith -------- determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
Appears in 1 contract
Samples: Credit Agreement (Nm Licensing LLC)
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date date of this Agreement affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or;
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a such Lender of the principal of or interest on the such Eurodollar Loans or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by pursuant to the laws of the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or (bany subdivision thereof or therein) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunder), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by such Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above), shall promptly give written notice to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, in the event that Eurodollar Loans are so affected, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower shall pay to such Lender, upon written demand therefor (accompanied by the written notice specified in the final parenthesis in this clause (y)), such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its sole discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis therefor and the calculation thereof, submitted to the Borrower by such Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto), and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) the Borrower shall) either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic written notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative AgentAgent and the affected Lender, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to or repay such Eurodollar Loan or such earlier day as shall be required by applicable law)in full; provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined determines that after the Effective Date that the adoption or effectiveness after the Effective Date introduction of any applicable law, rule or regulation regarding capital adequacy, or any change thereinin any applicable law or governmental rule, regulation, order, guideline, directive or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of concerning capital adequacy or reserves, or any such change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, has or would will have the effect of reducing increasing the rate amount of return on such Lender's or such other corporation's capital or assets as a consequence reserves required or expected to be maintained by such Lender or any corporation controlling such Lender based on the existence of such Lender's Commitments Revolving Loan Commitment hereunder or its obligations hereunder hereunder, then the Borrower shall pay to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy), then from time to time, upon its written demand by such Lender therefor (with a copy to the Administrative Agent), accompanied by the written notice referred to described below in the next succeeding sentence of this clause (c)), the Borrower agrees to pay to such Lender such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital or reserves. 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 determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent)Borrower, which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, show in reasonable detail, detail the basis therefor and calculation of such additional amounts claimed hereunderamounts, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto.1.10
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b)), that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Loans such Eurodollar Loan or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by Lender, or any franchise tax based on the net income or profits of such Lender, in either case pursuant to the laws of the United States of America or the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or (b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business any subdivision thereof or therein), but for the execution or delivery of this Agreement or any other Credit Document or the exercise without duplication of any rights or performance amounts payable in respect of any obligations hereunder or thereunderTaxes pursuant to Section 4.04(a), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, Lender or the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any time, time that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower shall, subject to the provisions of Section 13.15 (to the extent applicable) pay to such Lender, 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 in its discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing the basis for the calculation thereof and certifying that it is generally charging such costs to other similarly situated borrowers under similar credit facilities, submitted to the Borrower by such Lender in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Lender, the obligations of such Lender to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein shall be reinstated.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) the Borrower shall) either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative AgentAgent given immediately, or if permitted by applicable law given at such later date permitted thereby, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversionLoan, in the case of the circumstance described in Section 1.10(a)(iii)provided that, shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any Lender shall have determined time after the Effective Date any Lender determines that the adoption introduction of or effectiveness after the Effective Date of any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law, rule or regulation regarding ) concerning capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with agency, will have the interpretation effect of increasing the amount of capital required or administration thereof, or compliance expected to be maintained by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having based on the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such other corporation's capital or assets as a consequence existence of such Lender's Commitments hereunder or its obligations hereunder hereunder, then the Borrower shall, subject to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance the provisions of Section 13.15 (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacythe extent applicable), then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender Lender, upon its written demand therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith determination (made in a manner generally consistent with such Lender's standard practices) of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower, which notice shall show the basis for calculation of such additional amounts and certify that it is generally charging such costs to other similarly situated borrowers under similar credit facilities.
Appears in 1 contract
Samples: Credit Agreement (Capstar Broadcasting Partners Inc)
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause clauses (i) and (iv) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of the respective Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan Loans because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to (A) a change in the basis of taxation of payments to a Lender of the principal of or interest on the Loans or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or (b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunderlocated), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, the interbank Eurodollar market or the position of such Lender in such marketmarket (whether or not such Lender was a Lender at the time of such occurrence); or
(iii) at any timetime after the Effective Date, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order (or would conflict with any governmental rule, regulation, guideline, request or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawful) ), or (y) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank Eurodollar market;; or
(aiv) at any time that Bankers' Acceptance Loans are not available, as determined in good faith by the Administrative Agent, acting reasonably, to fund any Borrowing of Bankers' Acceptance Loans requested pursuant to Section 2.01(a), (d) or (e); then, and in any such event, such Lender (or the Administrative Agent, in the case of clauses (i) or (iv) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower, and, except in the case of clauses (i) and (iv) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (w) in the case of clause (i) above, in the event Eurodollar Loans are so affected, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies Holdings, any affected Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by either Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by such Borrower, (x) in the case of clause (ii) above, the respective Borrower or Borrowers agrees, subject to the provisions of Section 13.24 (to the extent applicable), to pay to such Lender, 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 in its sole discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (with the written notice as to the additional amounts owed to such Lender, submitted to the respective Borrower or Borrowers by such Lender in accordance with the foregoing to be, absent manifest error, final and conclusive and binding on all the parties hereto, although the failure to give any such notice shall not release or diminish any of the respective Borrower's or Borrowers' obligations to pay additional amounts pursuant to this Section 2.10(a) upon the subsequent receipt of such notice) and ), (zy) in the case of clause (iii) above, the respective Borrower or Borrowers shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by lawlaw and (z) in the case of clause (iv) above, Bankers' Acceptance Loans (exclusive of Bankers' Acceptance Loans which have theretofore been funded) shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing given by the Canadian Borrower with respect to such Bankers' Acceptance Loans which have not been incurred shall be deemed rescinded by the Canadian Borrower. Each of the Administrative Agent and each Lender agrees that if it gives notice to the either Borrower of any of the events described in clause (i), (ii), (iii) or (iiiiv) above, it shall promptly notify the such Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist. Notwithstanding the foregoing, for the avoidance of doubt, this Section 2.10 shall not apply to increased costs with respect to Taxes which are subject to indemnity under Section 5.04 hereof or any taxes that would have been subject to indemnity under Section 5.04 hereof but for an exclusion contained therein.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii2.10(a)(ii) or (iii), the affected Borrower may (and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii2.10(a)(iii) the Borrower shall) either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the such Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the circumstance described in Section 1.10(a)(iii2.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that that, if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If any Lender shall have determined after the Effective Date that the adoption or effectiveness after the Effective Date of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such other corporation's capital or assets as a consequence of such Lender's Commitment or Commitments hereunder or its obligations hereunder to either Borrower to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy), then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), such Borrower agrees, subject to the Borrower agrees provisions of Section 13.24 (to the extent applicable), to pay to such Lender such additional amount or amounts as will compensate such Lender or such other corporation for such reduction in the rate of return to such Lender or such other corporation. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 1.10(c2.10(c), will give prompt written notice thereof to the relevant Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c2.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although (subject to the provisions of Section 13.24 (to the extent applicable)) the failure to give any such notice shall not release or diminish the such Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c2.10(c) upon the subsequent receipt of such notice. A Lender's good faith determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date date of this Agreement affecting the applicable interbank eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate as to Loans constituting LIBOR Loans or EURIBOR Loans on the basis provided for in the definition of Eurodollar RateLIBOR or EURIBOR, as applicable; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder or a reduction in the rate of return or on a Lender’s (or its Affiliate’s) overall capital, in each case, with respect to any Eurodollar LIBOR Loan or EURIBOR Loan because of (xA) any change since the Effective Date in any applicable law Applicable Law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A1) a change in the basis or rate of taxation of payments payment to a any Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for (x) taxes and related amounts with respect to which additional amounts are payable or excluded paid pursuant to Section 4.04 and 5.04 or Section 5.05 or would be payable but for the failure to provide the forms provided in Section 5.04(b) or (y) changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by pursuant to the laws of the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or (bany subdivision thereof or therein) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunder), or (B2) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate LIBOR or EURIBOR and/or (yB) other circumstances arising since the Effective Date affecting such Lender, the interbank eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar LIBOR Loan or EURIBOR Loan has been made (xA) unlawful by any law or governmental rule, regulation or order order, (or would conflict B) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yC) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone promptly confirmed in writing) to US Company and, except in the subsequent receipt case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, US Revolving Loans constituting US LIBOR Loans shall no longer be available until such time as the Administrative Agent notifies US Company and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by any Borrower with respect to US LIBOR Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by such Borrower, (y) in the case of clause (ii) above, the US Borrowers and the UK Borrowers, jointly and severally, agree to pay to such Lender, as applicable, upon such Lender’s written 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 in its sole discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to US Company by such Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the respective Borrower or Borrowers shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause .
(i), (ii) or (iii) above, it shall promptly notify the Borrower and, in In the case of any such LenderUS Revolving Loans, the Administrative Agent, if such event ceases to exist.
(b) At at any time that any Eurodollar US Revolving Loan constituting a US LIBOR Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the affected Borrower may (may, and in the case of a Eurodollar US LIBOR Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), the affected Borrower shall) , either (x1) if the Eurodollar affected US LIBOR Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the such Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (y2) if the affected Eurodollar US LIBOR Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar US Revolving Loan constituting a US LIBOR Loan into a Base Rate Loan (which conversion, in the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law)Loan; provided that that, if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b2.10(b); and (ii) in the case of UK Revolving Loans, at any time that any of the UK Revolving Loans is affected by the circumstances described in Section 2.10(a)(iii) then the relevant Borrower shall repay the applicable Lender’s participation in that UK Revolving Loan on the last day of the Interest Period for such UK Revolving Loan or, if earlier, the date specified by the Lender in the notice delivered to the Administrative Agent (being no earlier than the last day of any applicable grace period permitted by law). Further, at any time that any of the UK Revolving Loans is affected by the circumstances described in Section 2.10(a)(i) then the applicable LIBOR or EURIBOR, as applicable, shall be calculated in respect of each Lender as the percentage rate of interest per annum reflecting such Lender’s cost of funding its participation in the UK Revolving Loans from whatever source it may reasonably select.
(c) If any Lender shall have determined determines that after the Effective Date that the adoption or effectiveness after the Effective Date introduction of any applicable law, rule or regulation regarding capital adequacy, or any change thereinin any Applicable Law or governmental rule, regulation, order, guideline, directive or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of concerning capital adequacy, or any such governmental authoritychange in interpretation or administration thereof by the NAIC or any Governmental Authority, central bank or comparable agency, has or would will have the effect of reducing increasing the rate amount of return capital required or expected to be maintained by such Lender or any corporation controlling such Lender based on such Lender's or such other corporation's capital or assets as a consequence the existence of such Lender's Commitments ’s Revolving Loan Commitment hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy)hereunder, then from time to timethe US Borrowers and the UK Borrowers, upon written demand by such Lender (with a copy to the Administrative Agent)jointly and severally, accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees agree to pay to such Lender Lender, as applicable, upon its written demand therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable; provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith ’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 2.10(c), will give prompt written notice thereof to US Company, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date date of this Agreement affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Loans such Loan or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income income, gross receipts or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by Lender, or any franchise tax based on net income, net profits or net worth of such Lender, in each case pursuant to the laws of the jurisdiction (a) in which it such Lender is organized or in which its such Lender's principal office or applicable lending office is located or (b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business any subdivision thereof or therein), but for the execution or delivery of this Agreement or any other Credit Document or the exercise without duplication of any rights or performance amounts payable in respect of any obligations hereunder or thereunder)Taxes pursuant to Section 4.04, or (B) a change in official reserve requirements, requirements but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, Lender or the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or and/or (yz) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the Lenders). Thereafter (x) in the case of clause (i) above, any Notice of Borrowing given by the Borrower with respect to any affected Loans which have not yet been incurred shall be deemed rescinded by the Borrower and the Total Commitment shall thereafter not be available to be borrowed hereunder, and the rate of interest applicable to any affected Loans then outstanding shall be the Base Rate, as in effect from time to time, from the date such notice is delivered to the Borrower and thereafter until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, (y) in the case of clause (ii) above, the Borrower agrees, subject to the provisions of Section 1.11 and Section 13.15 (to the extent applicable), to pay to such Lender, 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 in its reasonable good faith discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for and the calculation thereof, submitted to the Borrower by such Lender in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, and subject to Section 1.11, such Lender shall so notify the Administrative Agent and the Borrower (and the Administrative Agent shall promptly give notice thereof to the other Lenders) and thereafter (A) except in the case of an event of the type described in clause (iii)(z) above, the Commitment of such Lender shall be permanently reduced by an amount sufficient to alleviate such circumstance arising pursuant to clause (iii)(x) or (y) above, or shall be terminated in its entirety if all of such Lender's Loans are so affected, and the Borrower shall take one prepay in full the affected Loans of the actions specified in Section 1.10(b) as promptly as possible such Lender, together with accrued interest thereon and, in the event of a termination of such Lender's Commitment, any eventCommitment Commission which may be due to such Lender under this Agreement (and, within in the time period required by law. Each event all of such Lender's Loans are being repaid, any other amounts which may be owing to such Lender hereunder (including, without limitation, any accrued and unpaid interest)), on either the last day of the then current Interest Period applicable to each such affected Loan (if such Lender may lawfully continue to maintain and fund such Loans) or immediately (if such Lender may not lawfully continue to maintain and fund such Loans to such day) and (B) in the case of an event of the type described in clause (iii)(z) above, the Commitment of such Lender shall be terminated in its entirety and the Borrower shall pay to such Lender any accrued and unpaid Commitment Commission which may be due to such Lender under this Agreement, and all outstanding Loans of such Lender shall, from the date such notice is delivered to the Borrower and thereafter until such time as the Administrative Agent or such Lender shall notify the Borrower that the circumstances giving rise to the operation of clause (iii)(z) above with respect to such Lender no longer exist. The Administrative Agent and each Lender agrees (to the extent it continues to be a Lender hereunder) agree that if it any of them gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Lender (to the extent it continues at such time to be a Lender hereunder), the obligations of such Lender to make Loans on the terms and conditions contained herein shall to the extent of such Lender's outstanding Loans and Commitments as in effect at such time, be immediately reinstated.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) the Borrower shall) either (x) if the Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined in good faith determines that after the Effective Date that the adoption introduction of or effectiveness after the Effective Date of any applicable law, rule or regulation regarding capital adequacy, or any change thereinin any applicable law or governmental rule, regulation, order, guideline, directive or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of concerning capital adequacy, or any such change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, has or would agency will have the effect of reducing increasing the rate amount of return on capital required or requested to be maintained by such Lender's , or any corporation controlling such other corporation's capital or assets as a consequence Lender, based on the existence of such Lender's Commitments hereunder or its obligations hereunder hereunder, then the Borrower agrees, subject to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance the provisions of Section 13.15 (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacythe extent applicable), then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender Lender, upon its written demand therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith determination of compensation owing under this Section 1.10(c1.09(b) shall, absent manifest error, but subject to the provisions of Section 13.15 (to the extent applicable), be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.09(b), will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for and calculation of such additional amounts.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have reasonably determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date affecting the applicable interbank market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(iihereto) at any time (but otherwise subject to Section 13.04(b))time, after the later of the Closing Date and the date such entity became a Lender hereunder, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to the Loans, including as a result of any Eurodollar Loan because of Tax (other than any (x) Indemnified Taxes, (y) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes or (z) Connection Income Taxes) because of any change since the Effective Date date hereof in any applicable law or governmental rule, regulation, order, guideline or request Applicable Law (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or requestApplicable Law), such as, for example, but not limited to (A) without limitation, a change in the basis of taxation of payments to a Lender of the principal of or interest on the Loans or any other amounts payable hereunder official reserve requirements (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for but excluding changes in the rate of tax on, or determined by reference to, on the overall net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or (b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunderLender), or then, and in any such event, such Lender shall promptly give notice (Bif by telephone, confirmed in writing) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation Parent and Administrative Agent of such determination (which notice Administrative Agent shall promptly transmit to each of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting Lenders). Thereafter, 21029590V.1 Borrowers shall pay to such Lender, within 10 Business Days after receipt of written demand therefor such additional amounts (in the interbank market form of an increased rate of, or the position a different method of calculating, interest or otherwise as such Lender in such market; or
(iiiits reasonable discretion shall determine) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order (or would conflict with any governmental rule, regulation, guideline, request or order not having the force of law but with which as shall be required to compensate such Lender customarily complies even though the failure to comply therewith would not be unlawful) for such increased costs or reductions in amounts receivable hereunder (y) impracticable it being agreed that a written notice as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank market;
(a) upon the subsequent receipt of such notice) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (iadditional amounts owed to such Lender submitted to Borrowers by such Lender shall, absent manifest error, be final and conclusive and binding upon all parties hereto), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Eurodollar Loan is affected by If, after the circumstances described in Section 1.10(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 Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) the Borrower shall) either (x) if the Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined after the Effective Date that the adoption or effectiveness after the Effective Date of any applicable law, rule or regulation Applicable Law regarding capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authorityGovernmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such a Lender or any corporation controlling such Lender its parent with any request or directive made or adopted after such date regarding capital adequacy (whether or not having the force of law) of any such governmental authority, association, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's ’s or such other corporation's its parent’s capital or assets as a consequence of such Lender's Commitments hereunder ’s commitments or its obligations hereunder to a level below that which such Lender or such other corporation its parent could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's ’s or such other corporation's its parent’s policies with respect to capital adequacy), then from time to time, upon within 10 days after receipt of written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender or such other corporation its parent for such reduction in the rate of return reduction, it being understood and agreed, however, that a Lender shall not be entitled to such Lender compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any such other corporationApplicable 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 1.10(c2.07(b), will will, as promptly as practicable upon ascertaining knowledge thereof, give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent)Parent, which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, detail the basis of the calculation of such additional amounts claimed hereunderamounts. Without limiting Section 2.07(d), although the failure to give any such notice with respect to a particular event shall not release or diminish the Borrower's any of Borrowers’ obligations to pay additional amounts pursuant to this Section 1.10(c2.07(b) upon for amounts accrued or incurred after the subsequent receipt date of such noticenotice with respect to such event. A Lender's good faith determination 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 compensation owing 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 1.10(c2.07 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) shallsuch 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 contrary 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 circumstances entitling Borrowers to require such assignment pursuant to this Section 2.07(d) cease to apply.
(e) Prior to the effective date of such replacement pursuant to Section 2.07(d), 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 replacement. If the Increased Cost Lender shall refuse or fail to execute and deliver any such Assignment and Acceptance prior to the effective date 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 its holding company, as the case may be, as specified in Section 2.07(a) or 2.07(b) of this Section and delivered to the Borrower, shall be conclusive absent manifest error, be final and conclusive and binding on all the parties hereto.
Appears in 1 contract
Samples: Credit Agreement and Security Agreements (TerrAscend Corp.)
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Loans such Eurodollar Loan or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by Lender, or any franchise tax based on the net income or net profits of a Lender, in either case pursuant to the laws of the jurisdiction (a) in which it such Lender is organized or in which its such Lender's principal office or applicable lending office is located or any subdivision thereof or therein) (bit being understood that this Section 1.10(a)(ii) in which it is otherwise doing business (other than a jurisdiction in which it would shall not have been treated as doing business but for apply to any such increased costs or reductions resulting from or representing Taxes that are paid or reimbursed by the execution Borrower pursuant to Section 4.04(a) or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunderExcluded Taxes), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, Lender or the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower shall, subject to the provisions of Section 13.17 (to the extent applicable), pay to such Lender, 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 in its sole discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing the basis for the calculation thereof, submitted to the Borrower by such Lender in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Lender, the obligations of such Lender to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein shall be reinstated. In addition, if the Administrative Agent gives notice to the Borrower that the events described in clause (i) above cease to exist, then the obligations of the Lenders to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein (but subject to clause (iii) above) shall also be reinstated.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) the Borrower shall) either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversionLoan, in the case of the circumstance described in Section 1.10(a)(iii)provided that, shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any time any Lender shall have determined determines that, after the Effective Date that Date, the adoption introduction of or effectiveness after any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law and including, without limitation, those announced or published prior to the Effective Date of any applicable law, rule or regulation regarding Date) concerning capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency charged with agency, will have the interpretation effect of increasing the amount of capital required or administration thereof, or compliance expected to be maintained by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having based on the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such other corporation's capital or assets as a consequence existence of such Lender's Commitments hereunder or its obligations hereunder hereunder, then the Borrower shall, subject to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance the provisions of Section 13.17 (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacythe extent applicable), then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender Lender, upon its written demand therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower, which notice shall show the basis for calculation of such additional amounts. In addition, each such Lender, upon determining that the circumstances giving rise to the payment of additional amounts pursuant to this Section 1.10(c) cease to exist, will give prompt written notice thereof to the Borrower.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by Lender, or any franchise tax based on the net income or profits of such Lender, in either case pursuant to the laws of the United States of Americas, the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or (b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business any subdivision thereof or therein), but for the execution or delivery of this Agreement or any other Credit Document or the exercise without duplication of any rights or performance amounts payable in respect of any obligations hereunder or thereunderTaxes pursuant to Section 4.04(a), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower agrees, subject to the provisions of Section 13.15 (to the extent applicable), to pay to such Lender, upon such Lender's written 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 in its reasonable discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing the basis for the calculation thereof, submitted to the Borrower by such Lender in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Lender, the obligations of such Lender to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein shall be reinstated.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (may, and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) ), the Borrower shall) , either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three one Business Days' Day's written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversion, in at the case end of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the then current Interest Period then applicable to such Eurodollar Loan or at such earlier day date as shall may be required by to eliminate such circumstance or to comply with applicable law); , provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined determines that after the Effective Date that the adoption introduction or effectiveness after the Effective Date 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, rule or regulation regarding ) concerning capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with agency, will have the interpretation effect of increasing the amount of capital required or administration thereof, or compliance expected to be maintained by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having based on the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such other corporation's capital or assets as a consequence existence of such Lender's Commitments Commitment hereunder or its Loans or obligations hereunder hereunder, then the Borrower agrees, subject to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance the provisions of Section 13.15 (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacythe extent applicable), then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender Lender, upon its written demand therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give written notice thereof to the Borrower, which notice shall show the basis for calculation of such additional amounts.
Appears in 1 contract
Samples: Credit Agreement (Flowers Foods Inc)
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date date of this Agreement affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Initial Borrowing Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, as but not limited to to: (A) a change subjecting any Lender to any tax, duty or other charge with respect to any Loan, Notes or Letter of Credit, or its obligation to make such Loan or issue such Letter of Credit, or a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by pursuant to the laws of the jurisdiction (a) in which it such Lender is organized or in which its such Lender’s principal office or applicable lending office is located or (b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business located), but for the execution or delivery of this Agreement or any other Credit Document or the exercise without duplication of any rights or performance of any obligations hereunder or thereunder)increased costs with respect to Taxes which are addressed in Section 4.04, or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate Rate, and/or (y) other circumstances arising since the Effective Initial Borrowing Date affecting such Lender, the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or and/or (yz) impracticable as a result of a contingency occurring after the Effective Initial Borrowing Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone promptly confirmed in writing) to the subsequent receipt Borrower, which written notice shall set forth such Lender’s (or the Administrative Agent’s, as the case may be) basis for asserting its right under this Section 1.09(a) and the calculation, in reasonable detail, of such noticeadditional amounts claimed hereunder, and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, any Notice of Borrowing given by the Borrower with respect to any affected Loans which have not yet been incurred shall be deemed rescinded by the Borrower, the Total Unutilized Commitment shall thereafter not be available to be borrowed hereunder and Letters of Credit shall not be permitted to be issued hereunder, and the rate of interest applicable to any affected Loans then outstanding shall be the Base Rate, as in effect from time to time, plus the Applicable Margin as in effect from time to time minus 1%, from the date such notice is delivered to the Borrower and thereafter until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, (y) in the case of clause (ii) above, the Borrower agrees to pay to such Lender, upon such Lender’s written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its sole discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for and the calculation thereof, submitted to the Borrower by such Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, such Lender shall so notify the Administrative Agent and the Borrower (and the Administrative Agent shall give notice thereof to the other Lenders) and thereafter (A) except in the case of an event of the type described in clause (iii)(z) above, the Commitment of such Lender shall be permanently reduced by an amount sufficient to alleviate such circumstance arising pursuant to clause (iii)(x) or (y) above, or shall be terminated in its entirety if all of such Lender’s Loans are so affected, and the Borrower shall take one prepay in full the affected Loans of the actions specified in Section 1.10(b) as promptly as possible such Lender, together with accrued and unpaid interest thereon and, in the event of a termination of such Lender’s Commitment, any eventaccrued and unpaid Commitment Commission which may be due to such Lender under this Agreement (and, within in the time period required by law. Each event all of such Lender’s Loans are being repaid, any other amounts which may be owing to such Lender hereunder), on either the last day of the then current Interest Period applicable to each such affected Loan (if such Lender may lawfully continue to maintain and fund such Loans to such day) or immediately (if such Lender may not lawfully continue to maintain and fund such Loans to such day) and (B) in the case of an event of the type described in clause (iii)(z) above, the Unutilized Commitment of such Lender shall be terminated in its entirety and the Borrower shall pay to such Lender any accrued and unpaid Commitment Commission which may be due to such Lender under this Agreement, and all outstanding Loans of such Lender shall, from the date such notice is delivered to the Borrower and thereafter until such time as the Administrative Agent or such Lender shall notify the Borrower that the circumstances giving rise to the operation of clause (iii)(z) above with respect to such Lender no longer exist, bear interest at a rate equal to the Base Rate, as in effect from time to time, plus the Applicable Margin as in effect from time to time minus 1%, it being understood that, notwithstanding anything to the contrary in this Agreement, to the extent any repayment of Loans of any Lender affected by circumstances described in clause (iii)(z) above are repaid prior to receipt by the Borrower of the notice described above with respect to the elimination of such circumstances giving rise to the operation of clause (iii)(z) above with respect to such Lender, any amount of the Unutilized Commitment of such Lender which may otherwise result from such repayment shall be deemed permanently reduced upon the effectiveness of such repayment. The Administrative Agent and each Lender agrees (to the extent it continues to be a Lender hereunder) agree that if it any of them gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Lender (to the extent it continues at such time to be a Lender hereunder), the obligations of such Lender to make Loans on the terms and conditions contained herein shall to the extent of such Lender’s outstanding Loans and Commitments as in effect at such time, be immediately reinstated.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) the Borrower shall) either (x) if the Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined determines that after the Effective Date that the adoption introduction or effectiveness after the Effective Date of any applicable law, rule or regulation regarding capital adequacy, or any change thereinin any applicable law or governmental rule, regulation, order, guideline, directive or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of concerning capital adequacy, or any such change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, has or would agency will have the effect of reducing increasing the rate amount of return capital required or expected to be maintained by such Lender or any corporation controlling such Lender based on such Lender's or such other corporation's capital or assets as a consequence the existence of such Lender's ’s Commitments hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy)hereunder, then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender Lender, upon its written demand therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith that any additional amounts and will be payable pursuant to this Section 1.10(c)use averaging and attribution methods which are reasonable, will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent)provided that, which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith ’s determination of compensation owing under this Section 1.10(c1.09(b) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.09(b), will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shallIf, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect due to clause either (i) below, may be made only by the Administrative Agent):
(i) on introduction of or any Interest Determination Date that, by reason change in or in the interpretation of any changes arising after the Effective Date affecting the applicable interbank market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
law or regulation or (ii) at the compliance with any time (but otherwise subject to Section 13.04(b)), that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request hereafter adopted, promulgated or made by any central bank or other governmental authority (whether or not having the force of law) or ), there shall be any increase in the interpretation or administration thereof and including the introduction of cost to any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to (A) a change in the basis of taxation of payments to a Lender of agreeing to make or making, funding or maintaining Loans, then the principal Borrower shall from time to time, upon demand by such Lender (with a copy of or interest on such demand to the Loans or any other amounts payable hereunder Administrative Agent but subject to the terms of Section 2.14), pay (except for taxes and related amounts with respect to which additional amounts are payable or excluded funds provided by the Lessee as Supplemental Rent pursuant to Section 4.04 and 3.3 of the Lease after the Basic Term Commencement Date or pursuant to Article IX or Section 13.6 of the Participation Agreement prior to the Basic Term Commencement Date) to the Administrative Agent for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) account of such Lender imposed additional amounts sufficient to compensate such Lender for such increased cost. A certificate as to the amount of such increased cost, submitted to the Borrower and the Administrative Agent by the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or such Lender, shall be conclusive and binding for all purposes, absent manifest error.
(b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution or delivery of this Agreement or If any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunder), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, the interbank market or the position of such Lender in such market; or
(iii) at any time, determines that the making or continuance of any Eurodollar Loan has been made (x) unlawful by compliance with any law or governmental rule, regulation or order any guideline or request from any central bank or other governmental authority (whether or would conflict with any governmental rule, regulation, guideline, request or order not having the force of law law, but with which such Lender customarily complies even though the failure to comply therewith would not be unlawful) in each case promulgated or (y) impracticable as a result of a contingency occurring made after the Effective Date which materially and adversely date hereof) affects or would affect the applicable interbank market;
(a) upon the subsequent receipt amount of such notice) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period capital required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice or expected to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) the Borrower shall) either (x) if the Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined after the Effective Date that the adoption or effectiveness after the Effective Date of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance maintained by such Lender or any corporation controlling such Lender with any request and that the amount of such capital is increased by or directive regarding capital adequacy (whether or not having based upon the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such other corporation's capital or assets as a consequence existence of such Lender's Commitments commitment to lend hereunder and other commitments of this type or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoptionupon the Loans, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy), then from time to timethen, upon written demand by such Lender (with a copy of such demand to the Administrative Agent), accompanied by Agent but subject to the notice referred to in the next succeeding sentence terms of this clause (cSection 2.14), the Borrower agrees shall pay (with funds provided by the Lessee as Supplemental Rent pursuant to pay Section 3.3 of the Lease after the Basic Term Commencement Date or pursuant to Article IX or Section 13.6 of the Participation Agreement prior to the Basic Term Commencement Date) to the Administrative Agent for the account of such Lender Lender, from time to time as specified by such Lender, additional amount or amounts as will sufficient to compensate such Lender or such other corporation for such reduction in the rate light of return such circumstances, to the extent that such Lender reasonably determines such increase in capital to be allocable to the existence of such Lender's commitment to lend hereunder or upon the Loans. A certificate as to such Lender or such other corporation. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof submitted to the Borrower (a copy of which shall be sent and the Administrative Agent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis be conclusive and binding for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith determination of compensation owing under this Section 1.10(c) shallall purposes, absent manifest error.
(c) Without limiting the effect of the foregoing, the Borrower shall pay to each Lender on the last day of the Interest Period therefor so long as such Lender is maintaining reserves against "Eurocurrency liabilities" under Regulation D an additional amount (determined by such Lender and notified to the Borrower through the Administrative Agent) equal to the product of the following for each Eurodollar Loan for each day during such Interest Period:
(i) the principal amount of such Eurodollar Loan outstanding on such day; and
(ii) the remainder of (x) a fraction the numerator of which is the rate (expressed as a decimal) at which interest accrues on such Eurodollar Loan for such Interest Period as provided in this Credit Agreement (less the Applicable Percentage) and the denominator of which is one minus the effective rate (expressed as a decimal) at which such reserve requirements are imposed on such Lender on such day minus (y) such numerator; and ----- (iii) 1/360.
(d) Without affecting its rights under Section 2.11(a) or 2.11(b) or any other provision of this Agreement, each Lender agrees that if there is any increase in any cost to or reduction in any amount receivable by such Lender with respect to which the Borrower would be final obligated to compensate such Lender pursuant to Sections 2.11(a) or 2.11(b), such Lender shall use reasonable efforts to select an alternative lending office which would not result in any such increase in any cost to or reduction in any amount receivable by such Lender; provided, however, that no Lender shall be obligated to select an -------- ------- alternative lending office if such Lender determines that (i) as a result of such selection such Lender would be in violation of any applicable law, regulation, treaty, or guideline, or would incur additional costs or expenses or (ii) such selection would be inadvisable for regulatory reasons or inconsistent with the interests of such Lender.
(e) Notwithstanding any other provision of this Agreement, if any Lender shall notify the Administrative Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or any central bank or other governmental authority asserts that it is unlawful, for any Lender to perform its obligations hereunder to make or maintain Eurodollar Loans, then (i) each Eurodollar Loan will automatically, at the earlier of the end of the Interest Period for such Eurodollar Loan or the date required by law, convert into an ABR Loan and conclusive and binding on all (iii) the parties heretoobligation of the Lenders to make, convert or continue Eurodollar Loans shall be suspended until the Administrative Agent shall notify the Borrower that such Lender has determined that the circumstances causing such suspension no longer exist.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any --------------------------------- Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by pursuant to the laws of the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or (b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution any subdivision thereof or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereundertherein), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, Lender or the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower agrees to pay to such Lender, 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 in its sole discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing the basis for the calculation thereof, submitted to the Borrower by such Lender in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) the Borrower shall) either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversionLoan, in the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any Lender shall have determined time after the Effective Date any Lender determines that the adoption or effectiveness after the Effective Date introduction of any applicable law, rule or regulation regarding capital adequacy, or any change thereinin any applicable law or governmental rule, regulation, order, guideline, directive or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of concerning capital adequacy, or any such change in interpretation or administration thereof by the NAIC, any governmental authority, central bank or comparable agency, has or would will have the effect of reducing increasing the rate amount of return capital required or expected to be maintained by such Lender or any corporation controlling such Lender based on such Lender's or such other corporation's capital or assets as a consequence the existence of such Lender's Commitments Commitment hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy)hereunder, then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender Lender, upon its written demand therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such -------- Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give written notice thereof to the Borrower, which notice shall show the basis for calculation of such additional amounts.
(d) Notwithstanding anything to the contrary contained in the last sentence of clause (a) of this Section 1.10, unless a Lender gives notice to the Borrower pursuant to such sentence that the Borrower is obligated to pay additional amounts to compensate such Lender for any increased costs or reductions in amounts received or receivable hereunder (as described in sub-clause (a)(ii) of this Section 1.10) within 180 days after the later of (x) the date such Lender incurs the respective increased costs or reduction in the amounts received or receivable hereunder and (y) the date such Lender has actual knowledge of its incurrence of the respective increased costs or reduction in the amounts received or receivable hereunder, such Lender shall only be entitled to be compensated for any such amount by the Borrower pursuant to such sentence to the extent that any such amounts are incurred or suffered on or after the date which occurs 180 days prior to such Lender giving notice to the Borrower that it is obligated to pay the respective amounts pursuant to such sentence; provided, however, that if the circumstances giving rise to such claims have a -------- ------- retroactive effect, such 180-day period shall be extended to include the period of such retroactive effect. This Section 1.10(d) shall have no applicability to any other Section of this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Waters Corp /De/)
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause clauses (i) and (iii)(z) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date date of this Agreement affecting the applicable relevant interbank market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; orRate (in the case of Eurodollar Loans) or EURIBOR (in the case of Euro Term Loans);
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Euro Rate Loan which such Lender deems to be material because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, and including the introduction of any new law or governmental rule, regulation, order, guideline or requestrequest (a "Change in Law"), such as, for example, but not limited to which (A) a change in changes the basis of taxation of payments payment to a any Lender of the principal of or interest on the Loans such Euro Rate Loan or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by Lender, pursuant to the laws of the jurisdiction (a) in which it such Lender is organized or in which its such Lender's principal office or applicable lending office is located or (b) in any subdivision thereof or therein and Taxes for which it a payment is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunderrequired pursuant to Section 4.04(a)), or (B) a change in changes official reserve requirements, butrequirements (except to the extent covered by Section 1.10(d) in respect of Euro Term Loans and, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate or EURIBOR, as the case may be) and/or (yC) imposes any other circumstances arising since the Effective Date condition affecting such Lender, Lender or the relevant interbank market or the position of such Lender in such market; or;
(iii) at any time, that the making or continuance of any Eurodollar Euro Rate Loan has been made (x) unlawful by any law or governmental ruleChange in Law, regulation or order (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request made after the date of this Agreement (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date Change in Law which materially and adversely affects the applicable relevant interbank market;; or
(aiv) upon at any time, that such Lender shall incur any Mandatory Costs; then, and in any such event, such Lender (or the subsequent receipt Administrative Agent, in the case of such noticeclause (i) or (iii)(z) above) shall promptly give notice (by telephone confirmed in writing) to the Borrower and, except in the case of clauses (i) and (ziii)(z) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (w) in the case of clause (i) above, (A) in the event that Eurodollar Loans are so affected, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed a request for Base Rate Loans by the Borrower and (B) in the event that any Euro Term Loans are so affected, the interest rate for such Euro Term Loan shall be determined on the basis provided in the proviso to the definition of EURIBOR, (x) in the case of clause (ii) above, the Borrower shall pay to such Lender, 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 in its reasonable discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, based on averaging and attribution methods among customers which are reasonable, submitted to the Borrower by such Lender in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto), (y) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent law and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (iiz) or (iii) above, it shall promptly notify the Borrower and, in the case of any clause (iv) above, the Borrower shall pay to such Lender, the Administrative Agentupon written demand therefor, if such event ceases to existMandatory Costs.
(b) At any time that any Eurodollar Euro Rate Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurodollar Euro Rate Loan affected by the circumstances described in Section 1.10(a)(iii) the Borrower shall) shall either (x) if the Eurodollar affected Euro Rate Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic written notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) and, for Eurodollar Loans, deem it to be a request for Base Rate Loans or (y) if the affected Eurodollar Euro Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative AgentAgent and the affected Lender, and subject to Section 4.02(k), (A) in the case of a Eurodollar Rate Loan, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan or repay such Eurodollar Loan in full and (which conversion, B) in the case of any Euro Term Loan, repay such Euro Term Loan in full; provided that (i) if the circumstance circumstances described in Section 1.10(a)(iii)) apply to any Euro Term Loan, the Borrower may, in lieu of taking the actions described above, maintain such Euro Term Loan outstanding, in which case EURIBOR shall occur no later than be determined on the basis provided in the last day sentence of the Interest Period then applicable definition of EURIBOR, unless the maintenance of such Euro Term Loan outstanding on such basis would not stop the conditions described in Section 1.10(a)(iii) from existing (in which case the actions described above, without giving effect to such Eurodollar Loan or such earlier day as the proviso, shall be required by applicable law); provided that to be taken) and (ii) if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined that, after the Effective Date that Date, the introduction, adoption or effectiveness after the Effective Date of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by the NAIC, any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such other corporation's capital or assets as a consequence of such Lender's Commitment or Commitments or Loans hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy), then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding penultimate sentence of this clause (c), the Borrower agrees to shall pay to such Lender such additional amount or amounts as will compensate such Lender or such other corporation for such reduction reduction. In determining such additional amounts, each Lender will act reasonably and in the rate of return to such Lender or such other corporationgood faith and will use reasonable averaging and attribution methods. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, detail the basis of the calculation of such additional amounts claimed hereunderamounts, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's reasonable good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto.
(d) In the event that any Lender shall in good faith determine (which determination shall, absent manifest error, be final and conclusive and binding on all parties hereto) at any time that such Lender is required to maintain reserves (including, without limitation, any marginal, emergency, supplemental, special or other reserves required by applicable law) which have been established by any Federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body with jurisdiction over such Lender (including any branch, Affiliate or funding office thereof) in respect of any Euro Term Loans or any category of liabilities which includes deposits by reference to which the interest rate on any Euro Term Loan is determined or any category of extensions of credit or other assets which includes loans by a non-United States office of any Lender to non-United States residents, then, unless such reserves are included in the calculation of the interest rate applicable to such Euro Term Loans or are payable pursuant to Section 1.10(a)(ii)or (iv), such Lender shall promptly notify the Borrower in writing specifying the additional amounts required to indemnify such Lender against the cost of maintaining such reserves (such written notice to provide in reasonable detail a computation of such additional amounts) and the Borrower shall, and shall be obligated to, pay to such Lender such specified amounts as additional interest at the time that the Borrower is otherwise required to pay interest in respect of such Euro Term Loan or, if later, on written demand therefor by such Lender.
Appears in 1 contract
Samples: Credit Agreement (Aearo CO I)
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Term Loans or the Term Notes or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by Lender, or any franchise tax based on the net income or profits of such Lender, in either case pursuant to the laws of the United States of Americas, the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or (b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business any subdivision thereof or therein), but for the execution or delivery of this Agreement or any other Credit Document or the exercise without duplication of any rights or performance amounts payable in respect of any obligations hereunder or thereunderTaxes pursuant to Section 3.04(a), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower agrees, subject to the provisions of Section 13.15 (to the extent applicable), to pay to such Lender, upon such Lender’s written 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 in its reasonable discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing the basis for the calculation thereof, submitted to the Borrower by such Lender in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Lender, the obligations of such Lender to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein shall be reinstated.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (may, and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) ), the Borrower shall) , either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three one Business Days' Day’s written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversion, in at the case end of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the then current Interest Period then applicable to such Eurodollar Loan or at such earlier day date as shall may be required by to eliminate such circumstance or to comply with applicable law); , provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined determines that after the Effective Date that the adoption introduction or effectiveness after the Effective Date 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, rule or regulation regarding ) concerning capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with agency, will have the interpretation effect of increasing the amount of capital required or administration thereof, or compliance expected to be maintained by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having based on the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such other corporation's capital or assets as a consequence existence of such Lender's Commitments ’s Term Loan Commitment hereunder or its Term Loans or obligations hereunder hereunder, then the Borrower agrees, subject to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance the provisions of Section 13.15 (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacythe extent applicable), then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender Lender, upon its written demand therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith ’s determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give written notice thereof to the Borrower, which notice shall show the basis for calculation of such additional amounts.
Appears in 1 contract
Samples: Credit Agreement (Flowers Foods Inc)
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date date of this Agreement affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Loans such Loan or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (of such Lender, or any franchise tax based on the net income or capital taxes imposed in lieu thereof) net profits of such Lender imposed by pursuant to the laws of the jurisdiction (a) in which it such Lender is organized or in which its such Lender's principal office or applicable lending office is located or (b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business any subdivision thereof or therein), but for the execution or delivery of this Agreement or any other Credit Document or the exercise without duplication of any rights or performance amounts payable in respect of any obligations hereunder or thereunder)Taxes pursuant to Section 4.04, or (B) a change in official reserve requirements, requirements but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, Lender or the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or and/or (yz) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the Lenders). Thereafter (x) in the case of clause (i) above, any Notice of Borrowing given by the Borrower with respect to any affected Loans which have not yet been incurred shall be deemed rescinded by the Borrower and the Total First Priority Term Loan Commitment and the Total Second Priority Term Loan Commitment shall thereafter not be available to be borrowed hereunder, and the rate of interest applicable to any affected Loans then outstanding shall be the Base Rate, as in effect from time to time, plus the Applicable Margin as in effect from time to time minus 1.00%, from the date such notice is delivered to the Borrower and thereafter until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, (y) in the case of clause (ii) above, the Borrower agrees, subject to the provisions of Section 1.11 and Section 14.15 (to the extent applicable), to pay to such Lender, 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 in its reasonable good faith discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for and the calculation thereof, submitted to the Borrower by such Lender in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, and subject to Section 1.11, such Lender shall so notify the Administrative Agent and the Borrower (and the Administrative Agent shall promptly give notice thereof to the other Lenders) and thereafter (A) except in the case of an event of the type described in clause (iii)(z) above, the First Priority Term Loan Commitment and/or the Second Priority Term Loan Commitment (as may be applicable) of such Lender shall be permanently reduced by an amount sufficient to alleviate such circumstance arising pursuant to clause (iii)(x) or (y) above, or shall be terminated in its entirety if all of such Lender's First Priority Term Loans and/or Second Priority Term Loans (as may be applicable) are so affected, and the Borrower shall take one prepay in full the affected Loans of the actions specified in Section 1.10(b) as promptly as possible such Lender, together with accrued interest thereon and, in the event of a termination of such Lender's First Priority Term Loan Commitment and/or Second Priority Term Loan Commitment, as the case may be, any eventCommitment Commission which may be due to such Lender under this Agreement (and, within in the time period required by law. Each event all of such Lender's Loans are being repaid, any other amounts which may be owing to such Lender hereunder (including, without limitation, any accrued and unpaid interest)), on either the last day of the then current Interest Period applicable to each such affected Loan (if such Lender may lawfully continue to maintain and fund such Loans) or immediately (if such Lender may not lawfully continue to maintain and fund such Loans to such day) and (B) in the case of an event of the type described in clause (iii)(z) above, the First Priority Term Loan Commitment and/or the Second Priority Term Loan Commitment (as may be applicable) of such Lender shall be terminated in its entirety and the Borrower shall pay to such Lender any accrued and unpaid Commitment Commission which may be due to such Lender under this Agreement, and all outstanding Loans of such Lender shall, from the date such notice is delivered to the Borrower and thereafter until such time as the Administrative Agent or such Lender shall notify the Borrower that the circumstances giving rise to the operation of clause (iii)(z) above with respect to such Lender no longer exist, bear interest at a rate equal to the Base Rate, as in effect from time to time, plus the Applicable Margin as in effect from time to time minus 1.00%. The Administrative Agent and each Lender agrees (to the extent it continues to be a Lender hereunder) agree that if it any of them gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Lender (to the extent it continues at such time to be a Lender hereunder), the obligations of such Lender to make Loans on the terms and conditions contained herein shall to the extent of such Lender's outstanding Loans and Commitments as in effect at such time, be immediately reinstated.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) the Borrower shall) either (x) if the Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined in good faith determines that after the Effective Date that the adoption introduction of or effectiveness after the Effective Date of any applicable law, rule or regulation regarding capital adequacy, or any change thereinin any applicable law or governmental rule, regulation, order, guideline, directive or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of concerning capital adequacy, or any such change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, has or would agency will have the effect of reducing increasing the rate amount of return on capital required or requested to be maintained by such Lender's , or any corporation controlling such other corporation's capital or assets as a consequence Lender, based on the existence of such Lender's Commitments hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy)hereunder, then from time to timethe Borrower agrees, upon written demand by such Lender (with a copy subject to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender such additional amount or amounts as will compensate such Lender or such other corporation for such reduction in the rate of return to such Lender or such other corporation. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto.provisions of
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date date of this Agreement affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Loans such Loan or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income income, gross receipts or net profits (of such Lender, or any franchise tax based on net income, net profits or capital taxes imposed in lieu thereof) net worth, of such Lender imposed by pursuant to the laws of the jurisdiction (a) in which it such Lender is organized or in which its such Lender’s principal office or applicable lending office is located or (b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business any subdivision thereof or therein), but for the execution or delivery of this Agreement or any other Credit Document or the exercise without duplication of any rights or performance amounts payable in respect of any obligations hereunder or thereunder)Taxes pursuant to Section 4.04, or (B) a change in official reserve requirements, requirements but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, Lender or the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or and/or (yz) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the Lenders). Thereafter (x) in the case of clause (i) above, any Notice of Borrowing given by the Borrower with respect to any affected Loans which have not yet been incurred shall be deemed rescinded by the Borrower and the Total Term Loan Commitment and the Total Unutilized Revolving Loan Commitment shall thereafter not be available to be borrowed hereunder, and the rate of interest applicable to any affected Loans then outstanding shall be the Base Rate, as in effect from time to time, plus the Applicable Margin as in effect from time to time minus 1.00%, from the date such notice is delivered to the Borrower and thereafter until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, (y) in the case of clause (ii) above, the Borrower agrees, subject to the provisions of Section 1.11 and Section 13.15 (to the extent applicable), to pay to such Lender, 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 in its reasonable good faith discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for and the calculation thereof, submitted to the Borrower by such Lender in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, and subject to Section 1.11, such Lender shall so notify the Administrative Agent and the Borrower (and the Administrative Agent shall promptly give notice thereof to the other Lenders) and thereafter (A) except in the case of an event of the type described in clause (iii)(z) above, the Term Loan Commitment and/or Revolving Loan Commitment of such Lender shall be permanently reduced by an amount sufficient to alleviate such circumstance arising pursuant to clause (iii)(x) or (y) above, or shall be terminated in its entirety if all of such Lender’s Term Loans or Revolving Loans (as the case may be) are so affected, and the Borrower shall take one prepay in full the affected Loans of the actions specified in Section 1.10(b) as promptly as possible such Lender, together with accrued interest thereon and, in the event of a termination of such Lender’s Term Loan Commitment and/or Revolving Loan Commitment, any eventCommitment Commission which may be due to such Lender under this Agreement (and, within in the time period required by law. Each event all of such Lender’s Loans are being repaid, any other amounts which may be owing to such Lender hereunder (including, without limitation, any accrued and unpaid interest)), on either the last day of the then current Interest Period applicable to each such affected Loan (if such Lender may lawfully continue to maintain and fund such Loans) or immediately (if such Lender may not lawfully continue to maintain and fund such Loans to such day) and (B) in the case of an event of the type described in clause (iii)(z) above, the Term Loan Commitment and/or Revolving Loan Commitment of such Lender shall be terminated in its entirety and the Borrower shall pay to such Lender any accrued and unpaid Commitment Commission which may be due to such Lender under this Agreement, and all outstanding Loans of such Lender shall, from the date such notice is delivered to the Borrower and thereafter until such time as the Administrative Agent or such Lender shall notify the Borrower that the circumstances giving rise to the operation of clause (iii)(z) above with respect to such Lender no longer exist, bear interest at a rate equal to the Base Rate, as in effect from time to time, plus the Applicable Margin as in effect from time to time minus 1.00%, it being understood that, notwithstanding anything to the contrary in this Agreement, to the extent any repayment of Revolving Loans of any Lender affected by circumstances described in clause (iii)(z) above are repaid prior to receipt by the Borrower of the notice described above with respect to the elimination of such circumstances giving rise to the operation of clause (iii)(z) above with respect to such Lender, any amount of the Unutilized Revolving Loan Commitment of such Lender which may otherwise result from such repayment shall be deemed permanently reduced upon the effectiveness of such repayment. The Administrative Agent and each Lender agrees (to the extent it continues to be a Lender hereunder) agree that if it any of them gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Lender (to the extent it continues at such time to be a Lender hereunder), the obligations of such Lender to make Loans on the terms and conditions contained herein shall to the extent of such Lender’s outstanding Loans and Commitments as in effect at such time, be immediately reinstated.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) the Borrower shall) either (x) if the Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined in good faith determines that after the Effective Date that the adoption introduction of or effectiveness after the Effective Date of any applicable law, rule or regulation regarding capital adequacy, or any change thereinin any applicable law or governmental rule, regulation, order, guideline, directive or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of concerning capital adequacy, or any such change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, has or would agency will have the effect of reducing increasing the rate amount of return on capital required or requested to be maintained by such Lender's , or any corporation controlling such other corporation's capital or assets as a consequence Lender, based on the existence of such Lender's ’s Commitments hereunder or its obligations hereunder hereunder, then the Borrower agrees, subject to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance the provisions of Section 13.15 (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacythe extent applicable), then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender Lender, upon its written demand therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith ’s determination of compensation owing under this Section 1.10(c1.09(b) shall, absent manifest error, but subject to the provisions of Section 13.15 (to the extent applicable), be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.09(b), will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for and calculation of such additional amounts.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Lender Bank shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date date of this Agreement affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date date of this Agreement in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a Lender any Bank of the principal of or interest on the Loans such Eurodollar Loan or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by Bank, or any franchise tax based on the net income or profits of such Bank, in either case pursuant to the laws of the United States of America or the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or (b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business any subdivision thereof or therein), but for the execution or delivery of this Agreement or any other Credit Document or the exercise without duplication of any rights or performance amounts payable in respect of any obligations hereunder or thereunderTaxes pursuant to Section 4.04(a), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date date of this Agreement affecting such Lender, Bank or the interbank market or the position of such Lender in such Eurodollar market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Bank in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date date of this Agreement which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Bank (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Banks). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower shall, subject to the provisions of Section 13.15 (to the extent applicable), pay to such 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 Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the Borrower by such Bank in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender Bank agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such LenderBank, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Bank, the obligations of such Bank to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein shall be reinstated.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) the Borrower shall) either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Lender Bank to convert such Eurodollar Loan into a Base Rate Loan (which conversionLoan, in the case of the circumstance described in Section 1.10(a)(iii)PROVIDED that, shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender Bank is affected at any time, then all affected Lenders Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any Lender shall have determined time after the Effective Date date of this Agreement any Bank determines that the adoption introduction of or effectiveness after the Effective Date of any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law, rule or regulation regarding ) concerning capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with agency, will have the interpretation effect of increasing the amount of capital required or administration thereof, or compliance expected to be maintained by such Lender Bank or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having Bank based on the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such other corporation's capital or assets as a consequence existence of such LenderBank's Commitments hereunder or its obligations hereunder hereunder, then the Borrower shall, subject to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance the provisions of Section 13.15 (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacythe extent applicable), then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender Bank, upon its written demand therefor, such additional amount or amounts as will shall be required to compensate such Lender Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Lender Bank or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, PROVIDED that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such LenderBank's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower, which notice shall show the basis for calculation of such additional amounts.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date date of this Agreement affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since Change in Law after the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or requestDate, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for (x) taxes and related amounts with respect to which additional amounts are payable or excluded paid pursuant to Section 4.04 and for or (y) changes in the rate of tax on, or determined by reference to, the net income or net profits (or any franchise or capital taxes similar tax imposed in lieu thereofof a net income or net profits tax) of such Lender imposed by pursuant to the laws of the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or (bany subdivision thereof or therein) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunder), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone promptly confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower agrees to pay to such Lender, upon such Lender’s written 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 in its reasonable discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to the Borrower by such Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (may, and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) ), the Borrower shall) , either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversionLoan, in the case of the circumstance described in Section 1.10(a)(iii)provided that, shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined determines that any Change in Law after the Effective Date that date on which it became a Lender hereunder, will have the adoption effect of increasing the amount of capital or effectiveness after the Effective Date of any applicable law, rule liquidity required or regulation regarding capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance expected to be maintained by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having based on the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such other corporation's capital or assets as a consequence existence of such Lender's Commitments ’s Revolving Loan Commitment hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy)hereunder, then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender Lender, upon its written demand therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith ’s determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Facility (Magellan Health Services Inc)
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto buthereto, but with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date date of this Agreement affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to (A) a change in the basis of taxation of payments to a any Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (without duplication of Taxes covered by Section 3.03 and except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for (I) changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein and (bII) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereundertaxes specifically excluded by Section 3.03), or (B) ), a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance continuation of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone promptly confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter, (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower agrees to pay to such Lender, upon such Lender’s written 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 in its sole discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to the Borrower by such Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (may, and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) ), the Borrower shall) , either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversionLoan, in the case of the circumstance described in Section 1.10(a)(iii)provided that, shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined determines that after the Effective Date that the adoption or effectiveness after the Effective Date introduction of any applicable law, rule or regulation regarding capital adequacy, or any change thereinin any applicable law or governmental rule, regulation, order, guideline, directive or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of concerning capital adequacy, or any such governmental authoritychange in interpretation or administration thereof by the Federal Reserve or any other Governmental Authority, central bank or comparable agency, has or would will have the effect of reducing increasing the rate amount of return capital required or expected to be maintained by such Lender or any corporation controlling such Lender based on such Lender's or such other corporation's capital or assets as a consequence the existence of such Lender's ’s Commitments hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy)hereunder, then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender Lender, upon its written demand therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith ’s determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have reasonably determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date affecting the applicable interbank market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(iihereto) at any time (but otherwise subject to Section 13.04(b))time, after the later of the Closing Date and the date such entity became a Lender hereunder, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to the Loans, including as a result of any Eurodollar Loan because of Tax (other than any (x) Indemnified Taxes, (y) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes or (z) Connection Income Taxes) because of any change since the Effective Date date hereof in any applicable law or governmental rule, regulation, order, guideline or request Applicable Law (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or requestApplicable Law), such as, for example, but not limited to (A) without limitation, a change in the basis of taxation of payments to a Lender of the principal of or interest on the Loans or any other amounts payable hereunder official reserve requirements (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for but excluding changes in the rate of tax on, or determined by reference to, on the overall net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or (b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunderLender), or then, and in any such event, such Lender shall promptly give notice (Bif by telephone, confirmed in writing) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation Parent and Administrative Agent of such determination (which notice Administrative Agent shall promptly transmit to each of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting Lenders). Thereafter, Borrowers shall pay to such Lender, within 10 Business Days after receipt of written demand therefor such additional amounts (in the interbank market form of an increased rate of, or the position a different method of calculating, interest or otherwise as such Lender in such market; or
(iiiits reasonable discretion shall determine) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order (or would conflict with any governmental rule, regulation, guideline, request or order not having the force of law but with which as shall be required to compensate such Lender customarily complies even though the failure to comply therewith would not be unlawful) for such increased costs or reductions in amounts receivable hereunder (y) impracticable it being agreed that a written notice as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank market;
(a) upon the subsequent receipt of such notice) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (iadditional amounts owed to such Lender submitted to Borrowers by such Lender shall, absent manifest error, be final and conclusive and binding upon all parties hereto), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Eurodollar Loan is affected by If, after the circumstances described in Section 1.10(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 Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) the Borrower shall) either (x) if the Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined after the Effective Date that the adoption or effectiveness after the Effective Date of any applicable law, rule or regulation Applicable Law regarding capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authorityGovernmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such a Lender or any corporation controlling such Lender its parent with any request or directive made or adopted after such date regarding capital adequacy (whether or not having the force of law) of any such governmental authority, association, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's ’s or such other corporation's its parent’s capital or assets as a consequence of such Lender's Commitments hereunder ’s commitments or its obligations hereunder to a level below that which such Lender or such other corporation its parent could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's ’s or such other corporation's its parent’s policies with respect to capital adequacy), then from time to time, upon within 10 days after receipt of written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender or such other corporation its parent for such reduction in the rate of return reduction, it being understood and agreed, however, that a Lender shall not be entitled to such Lender compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any such other corporationApplicable 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 1.10(c2.07(b), will will, as promptly as practicable upon ascertaining knowledge thereof, give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent)Parent, which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, detail the basis of the calculation of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such noticeamounts. A Lender's good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto.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 clause (i) below, the Administrative Agent or (y) in the case of clauses (ii) and (iii) below, any Lender Lender, shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agenthereto):
(i) on any Interest Determination Date Date, that, by reason of any changes arising after the Effective Date date of this Agreement affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan Loans because of (x) any change since the Effective Date date of this Agreement in any applicable law or law, governmental rule, regulation, orderguideline, guideline order or request (whether or not having the force of law) ), or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, orderguideline, guideline order or request, request (such as, for example, but not limited to to, (A) without duplication of any amounts payable under Section 4.04(a), a change in the basis of taxation of payments or payment to a any Lender of the principal of or interest on the such Eurodollar Loans or any other amounts payable hereunder (except for taxes and related amounts changes with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of any tax imposed on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by pursuant to the laws of the jurisdiction (a) in which it such Lender is organized or in which its such Lender's principal office or applicable lending office is located or (b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution any subdivision thereof or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereundertherein), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any timetime since the date of this Agreement, that the making or continuance of any Eurodollar Loan has been made (x) become unlawful by compliance by such Lender with any law or law, governmental rule, regulation regulation, guideline or order (or would conflict with any governmental rule, regulation, guideline, request or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawful) ), or (y) has become impracticable as a result of a contingency occurring after the Effective Date date of this Agreement which materially and adversely affects the applicable interbank Eurodollar market;
(a) upon the subsequent receipt of such notice) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurodollar Loan affected by the circumstances described in pursuant to Section 1.10(a)(iii) the Borrower shall) either (xi) if the affected Eurodollar Loan is then being made initially or pursuant to a conversionBorrowing, cancel the respective said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by the affected a Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) )), or (yii) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Lender to convert each such Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law)Loan; provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined after the Effective Date that the adoption or effectiveness after the Effective Date date hereof of any applicable law, rule or regulation regarding capital adequacy, or any change thereintherein after the date hereof, or any change after the Effective Date date hereof in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of any such governmental authority, central bank or comparable agencyagency adopted or effective after the date hereof, has or would have the effect of reducing the rate of return on such Lender's or such other corporation's capital or assets as a consequence of such Lender's Commitment or Commitments hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy), then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding last sentence of this clause (c), the Borrower agrees shall, subject to Section 1.14, pay to such Lender such additional amount or amounts as will compensate such Lender or such other corporation for such reduction in the rate of return to such Lender or such other corporationreduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's the basis for asserting its rights under this Section 1.10(c) and of the calculation, in reasonable detail, calculation of such additional amounts claimed hereunderamounts, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's reasonable good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date date of this Agreement affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by pursuant to the laws of the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or (bany subdivision thereof or therein) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunder), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone promptly confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower agrees to pay to such Lender, upon such Lender’s written 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 in its sole discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to the Borrower by such Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (may, and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) ), the Borrower shall) , either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversionLoan, in the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined determines that after the Effective Date that the adoption introduction or effectiveness after the Effective Date of any applicable law, rule or regulation regarding capital adequacy, or any change thereinin any applicable law or governmental rule, regulation, order, guideline, directive or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of concerning capital adequacy, or any such change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, has or would will have the effect of reducing increasing the rate amount of return capital required or expected to be maintained by such Lender or any corporation controlling such Lender based on such Lender's or such other corporation's capital or assets as a consequence the existence of such Lender's ’s Commitments hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy)hereunder, then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender Lender, upon its written demand therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith ’s determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
Appears in 1 contract
Samples: Credit Agreement (Town Sports International Holdings Inc)
Increased Costs, Illegality, etc. (a) In the event that any a Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
hereto): (i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date date of this Agreement affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
or (ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan of such Lender because of (x) any change since the Effective Closing Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a such Lender of the principal of or interest on the Loans such Lender's Loan or Note or any other amounts payable to such Lender hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by pursuant to the laws of the jurisdiction (a) in which it is doing business, organized or in which its principal office or applicable lending office is located or (bany subdivision thereof or therein) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunder), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances (other than with respect to taxes) arising since the Effective Closing Date affecting such LenderLender (or its Source), the interbank Eurodollar market or the position of such Lender in such market; or
or (iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by such Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Closing Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender shall promptly give notice (aby telephone promptly confirmed in writing) upon to the subsequent receipt Borrower of such noticedetermination. Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as such Lender notifies the Borrower that the circumstances giving rise to such notice by the Lender no longer exist, (y) in the case of clause (ii) above, the Borrower agrees to pay to such Lender, upon such Lender's written 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 in its sole discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to the Borrower by such Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b2.7(b) as promptly as possible and, in any event, within the time period required by lawLaw. Each Lender, at the sole cost and expense of the Administrative Agent Borrower (including, but not limited to, such Lender's internal costs for use of its personnel and each Lender agrees that if it gives notice resources), will use its reasonable efforts to minimize taxes indemnifiable by the Borrower under this Section 2.7(a), including by complying with reasonable requests by the Borrower to do or to refrain from doing any act (including the execution of any of the events described in clause (icertificates or similar documents required to establish an exemption or relief from any tax), (ii) if such efforts or (iii) above, it shall promptly notify the Borrower andany such compliance is, in the case good faith discretion of any such Lender, of a purely ministerial nature and has no adverse impact on such Lender or any Affiliate or on the Administrative Agent, if business or operations of the foregoing (unless such event ceases adverse impact is one of a nature and quality such that it is subject to existindemnification and the Borrower has indemnified such Lender against such adverse impact in a manner satisfactory to such Lender determined in its sole discretion). The Borrower shall indemnify such Lender for any taxes that may be imposed on it as a consequence of such compliance.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii2.7(a)(i) or (iiiii), the Borrower may (may, and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) 2.7(a)(iii), the Borrower shall) either (x) if the Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agentsuch Lender, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b)Loan.
(c) If any a Lender shall have determined determines that after the Effective Closing Date that the adoption or effectiveness after the Effective Date introduction of any applicable law, rule or regulation regarding capital adequacy, or any change thereinin any applicable law or governmental rule, regulation, order, guideline, directive or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of concerning capital adequacy, or any such change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, has or would will have the effect of reducing increasing the rate amount of return capital required or expected to be maintained by such Lender (or its Source) or any corporation controlling such Lender based on such Lender's or such other corporation's capital or assets as a consequence the existence of such Lender's Commitments hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy)hereunder, then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender Lender, upon its written demand therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith determination of compensation owing under this Section 1.10(c2.7(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Such Lender, upon determining that any additional amounts will be payable pursuant to this Section 2.7(c), will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
Appears in 1 contract
Samples: Credit Agreement (Pg&e Corp)
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date date of this Agreement affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Restatement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by pursuant to the laws of the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or (bany subdivision thereof or therein) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunder), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Restatement Effective Date affecting such Lender, the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Restatement Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone promptly confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower agrees to pay to such Lender, upon such Lender’s written 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 in its sole discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to the Borrower by such Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the Borrower may (may, and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), the Borrower shall) , either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversionLoan, in the case of the circumstance described in Section 1.10(a)(iii)provided that, shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If any Lender shall have determined determines that after the Restatement Effective Date that the adoption or effectiveness after the Effective Date introduction of any applicable law, rule or regulation regarding capital adequacy, or any change thereinin any applicable law or governmental rule, regulation, order, guideline, directive or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of concerning capital adequacy, or any such change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, has or would will have the effect of reducing increasing the rate amount of return capital required or expected to be maintained by such Lender or any corporation controlling such Lender based on such Lender's or such other corporation's capital or assets as a consequence the existence of such Lender's ’s Commitments hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy)hereunder, then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender Lender, upon its written demand therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith ’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining 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 show in reasonable detail the basis for calculation of such additional amounts.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date date of this Agreement affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since Change in Law after the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or requestDate, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for (x) taxes and related amounts with respect to which additional amounts are payable or excluded paid pursuant to Section 4.04 and for 4.04, (y) changes in the rate of tax on, or determined by reference to, the net income or net profits (or any franchise or capital taxes similar tax imposed in lieu thereofof a net income or net profits tax) of such Lender imposed by pursuant to the laws of the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (bz) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunder), taxes under FATCA or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone promptly confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower agrees to pay to such Lender, upon such Lender’s written 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 in its reasonable discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to the Borrower by such Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (may, and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) ), the Borrower shall) , either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversionLoan; provided, in the case of the circumstance described in Section 1.10(a)(iii)that, shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined determines that any Change in Law after the Effective Date that date on which it became a Lender hereunder, will have the adoption effect of increasing the amount of capital or effectiveness after the Effective Date of any applicable law, rule liquidity required or regulation regarding capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance expected to be maintained by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having based on the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such other corporation's capital or assets as a consequence existence of such Lender's ’s Commitments or Loans hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy)hereunder, then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender Lender, upon its written demand therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital or liquidity. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable; provided, that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith ’s determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date date of this Agreement affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by pursuant to the laws of the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or (bany subdivision thereof or therein) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunder), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone promptly confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower agrees to pay to such Lender, upon such Lender's written 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 in its sole discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to the Borrower by such Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (may, and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) ), the Borrower shall) , either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversionLoan, in the case of the circumstance described in Section 1.10(a)(iii)provided that, shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined determines that after the Effective Date that the adoption or effectiveness after the Effective Date introduction of any applicable law, rule or regulation regarding capital adequacy, or any change thereinin any applicable law or governmental rule, regulation, order, guideline, directive or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of concerning capital adequacy, or any such change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, has or would will have the effect of reducing increasing the rate amount of return capital required or expected to be maintained by such Lender or any corporation controlling such Lender based on such Lender's or such other corporation's capital or assets as a consequence the existence of such Lender's Commitments hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy)hereunder, then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender Lender, upon its written demand therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
Appears in 1 contract
Samples: Credit Agreement (Fairchild Semiconductor International Inc)
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date date of this Agreement affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or capital or franchise or capital taxes imposed in lieu thereof) thereof of such Lender imposed by or, in the case of a Lender that is a flow-through entity for tax purposes, a member or a partner of such Lender, pursuant to the laws of the country or national jurisdiction (aor any political subdivision thereof) in which it is organized or in which its principal office or applicable lending office is located or located) (b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution or delivery preceding provisions of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunder), clause (ii) shall not apply to increased costs with respect to Taxes which are addressed in Section 4.04) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone promptly confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, but subject to Section 13.17, the Borrower agrees to pay to such Lender, upon such Lender’s written 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 in its sole discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for and the calculation thereof, submitted to the Borrower by such Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (may, and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) ), the Borrower shall) , either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversionLoan, in the case of the circumstance described in Section 1.10(a)(iii)provided that, shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined determines that after the Effective Date that the adoption or effectiveness after the Effective Date introduction of any applicable law, rule or regulation regarding capital adequacy, or any change thereinin any applicable law or governmental rule, regulation, order, guideline, directive or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of concerning capital adequacy, or any such change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, has or would will have the effect of reducing increasing the rate amount of return capital required or expected to be maintained by such Lender or any corporation controlling such Lender based on such Lender's or such other corporation's capital or assets as a consequence the existence of such Lender's ’s Commitments hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy)hereunder, then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender Lender, upon its written demand therefor, but subject to the provisions of Section 13.17 (to the extent applicable), such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith ’s determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
Appears in 1 contract
Samples: Credit Agreement (RCN Corp /De/)
Increased Costs, Illegality, etc. (a) In the event that any Lender --------------------------------- Bank shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Restatement Effective Date affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Restatement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a Lender any Bank of the principal of or interest on the Loans such Eurodollar Loan or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by Bank, or any franchise tax based on the net income or net profits of a Bank, in either case pursuant to the laws of the jurisdiction (a) in which it such Bank is organized or in which its such Bank's principal office or applicable lending office is located or (b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution any subdivision thereof or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereundertherein), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Restatement Effective Date affecting such Lender, Bank or the interbank Eurodollar market or the position of such Lender Bank in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Bank in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Restatement Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Bank (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Banks). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower shall, subject to the provisions of Section 13.17 (to the extent applicable), pay to such 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 Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the Borrower by such Bank in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender Bank agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such LenderBank, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Bank, the obligations of such Bank to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein shall be reinstated. In addition, if the Administrative Agent gives notice to the Borrower that the events described in clause (i) above cease to exist, then the obligations of the Banks to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein (but subject to clause (iii) above) shall also be reinstated.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) the Borrower shall) either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Lender Bank to convert such Eurodollar Loan into a Base Rate Loan (which conversionLoan, in the case of the circumstance described in Section 1.10(a)(iii)provided -------- that, shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender Bank is affected at any time, then all affected Lenders Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any Lender shall have determined time any Bank determines that, after the Restatement Effective Date that Date, the adoption or effectiveness after the Effective Date introduction of any applicable law, rule or regulation regarding capital adequacy, or any change thereinin any applicable law or governmental rule, regulation, order, guideline, directive or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of lawlaw and including, without limitation, those announced or published prior to the Restatement Effective Date) of concerning capital adequacy, or any such change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, has or would will have the effect of reducing increasing the rate amount of return capital required or expected to be maintained by such Bank or any corporation controlling such Bank based on such Lender's or such other corporation's capital or assets as a consequence the existence of such LenderBank's Commitments hereunder or its obligations hereunder hereunder, then the Borrower shall, subject to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance the provisions of Section 13.17 (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacythe extent applicable), then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender Bank, upon its written demand therefor, such additional amount or amounts as will shall be required to compensate such Lender Bank or such other corporation for the increased cost to such Bank or such other corporation or the reduction in the rate of return to such Lender Bank or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Bank will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such LenderBank's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith -------- determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Bank, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower, which notice shall show the basis for calculation of such additional amounts. In addition, each such Bank, upon determining that the circumstances giving rise to the payment of additional amounts pursuant to this Section 1.10(c) cease to exist, will give prompt written notice thereof to the Borrower.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date date of this Agreement affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by pursuant to the laws of the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or (bany subdivision thereof or therein) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunder), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone promptly confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower agrees to pay to such Lender, within five days after (or on such later date or dates as such Lender may indicate in) such Lender’s written 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 in its sole discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to the Borrower by such Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (may, and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) ), the Borrower shall) , either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversionLoan, in the case of the circumstance described in Section 1.10(a)(iii)provided that, shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined determines that after the Effective Date that the adoption or effectiveness after the Effective Date introduction of any applicable law, rule or regulation regarding capital adequacy, or any change thereinin any applicable law or governmental rule, regulation, order, guideline, directive or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of concerning capital adequacy, or any such change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, has or would will have the effect of reducing increasing the rate amount of return capital required or expected to be maintained by such Lender or any corporation controlling such Lender based on such Lender's or such other corporation's capital or assets as a consequence the existence of such Lender's ’s Commitments hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy)hereunder, then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender, within five days after (or on such later date or dates as such Lender may indicate in) its written demand therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith ’s determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
Appears in 1 contract
Samples: Credit Agreement (Nash Finch Co)
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative AgentAgent or the Required Lenders, as set forth below):
(i) (x) on any Interest Determination Date that, by reason of any changes arising after the Restatement Effective Date affecting the applicable interbank Eurodollar market, the Administrative Agent determines that adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar RateRate or (y) the Administrative Agent is advised by the Required Lenders that the Eurodollar Rate will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Restatement Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by Lender, or any franchise tax based on the net income or profits of such Lender, in either case pursuant to the laws of the United States of Americas, the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or (b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business any subdivision thereof or therein), but for the execution or delivery of this Agreement or any other Credit Document or the exercise without duplication of any rights or performance amounts payable in respect of any obligations hereunder or thereunderTaxes pursuant to Section 4.04(a), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Restatement Effective Date affecting such Lender, the interbank Eurodollar market or the position of such Lender in such marketmarket (including the Eurodollar Rate with respect to such Eurodollar Loan does not adequately and fairly reflect the cost to such Lender of funding such Eurodollar Loan); ororprovided
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Restatement Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone confirmed in writing or other electronic means) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower agrees, subject to the provisions of Section 13.15 (to the extent applicable), to pay to such Lender, upon such Lender’s written 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 in its reasonable discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing the basis for the calculation thereof, submitted to the Borrower by such Lender in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b1.102.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Lender, the obligations of such Lender to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein shall be reinstated.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii1.102.10(a)(ii), the Borrower may (may, and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) 1.102.10(a)(iii), the Borrower shall) , either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii1.102.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three one Business Days' Day’s written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversion, in at the case end of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the then current Interest Period then applicable to such Eurodollar Loan or at such earlier day date as shall may be required by to eliminate such circumstance or to comply with applicable law); , provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b1.102.10(b).
(c) If any Lender shall have determined determines that after the Restatement Effective Date that the adoption introduction or effectiveness after the Effective Date 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, rule or regulation regarding ) concerning capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with agency, will have the interpretation effect of increasing the amount of capital required or administration thereof, or compliance expected to be maintained by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having based on the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such other corporation's capital or assets as a consequence existence of such Lender's Commitments ’s Commitment hereunder or its Loans or obligations hereunder hereunder, then the Borrower agrees, subject to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance the provisions of Section 13.15 (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacythe extent applicable), then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender Lender, upon its written demand therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith ’s determination of compensation owing under this Section 1.10(c1.102.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.102.10(c), will give written notice thereof to the Borrower, which notice shall show the basis for calculation of such additional amounts.
(d) Notwithstanding anything in this Agreement to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall be deemed to be a change after the 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 1.102.10 and Section 2.063.06).
(e) If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (a)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (a)(i) have not arisen, but the administrator of the Eurodollar Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the Eurodollar Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternative 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 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 (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 13.12, 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 stating that such Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (e), any Notice of Borrowing or Notice of Conversion/Continuation given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Flowers Foods Inc)
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Loans or the Revolving Notes or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by pursuant to the laws of the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or (b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution any subdivision thereof or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereundertherein), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, the interbank market or the position of such Lender in such marketRate; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower agrees to pay to such Lender, 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 in its sole discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing the basis for the calculation thereof, submitted to the Borrower by such Lender in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) the Borrower shall) either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversionLoan, in the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any Lender shall have determined time after the Effective Date any Lender determines that the adoption introduction of or effectiveness after the Effective Date of any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law, rule or regulation regarding ) concerning capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with agency, will have the interpretation effect of increasing the amount of capital required or administration thereof, or compliance expected to be maintained by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having based on the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such other corporation's capital or assets as a consequence existence of such Lender's Commitments Commitment hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy)hereunder, then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender Lender, upon its written demand therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give written notice thereof to the Borrower, which notice shall show the basis for calculation of such additional amounts.
(d) The provisions contained in this Section 1.10 shall survive the termination of this Agreement and the payment of all amounts payable hereunder; provided, however, that in no event shall the Borrower be obligated to reimburse or compensate any Lender for amounts contemplated by this Section 1.10 for any period prior to the date that is 90 days prior to the date upon which such Lender requests in writing such reimbursement or compensation from the Borrower. This Section 1.10(d) shall have no applicability to any other Section of this Agreement.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause clauses (i) and (iv) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date date of this Agreement affecting the applicable interbank eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate as to Loans constituting LIBOR Loans or EURIBOR Loans on the basis provided for in the definition of Eurodollar RateLIBOR or EURIBOR, as applicable; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder or a reduction in the rate of return on a Lender’s (or its Affiliate’s) overall capital, in each case, with respect to any Eurodollar LIBOR Loan or EURIBOR Loan because of (xA) any change since the Effective Date in any applicable law Applicable Law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such asas to, without limitation, (1) impose, modify or deem applicable any reserve (whether for exampleliquidity, but not limited to (A) a change capital adequacy or otherwise), special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in the basis of taxation of payments to a by, any Lender of the principal of or interest on the Loans or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or (b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunder), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of LIBOR or EURIBOR); (2) subject any Recipient to any Taxes (other than (x) Indemnified Taxes and (y) 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 (3) impose on any Lender or the Eurodollar Rate London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein and/or (yB) other circumstances arising since the Effective Date affecting such Lender, the interbank eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar LIBOR Loan or EURIBOR Loan has been made (xA) unlawful by any law or governmental rule, regulation or order order, (or would conflict B) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yC) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank eurodollar market;; or
(aiv) upon that for any reason a market for bankers’ acceptances does not exist at any time as determined in good faith by the subsequent receipt Administrative Agent; then, and in any such event, such Lender (or the Administrative Agent, in the case of clause (i) or (iv) above) shall promptly give notice (by telephone promptly confirmed in writing) to US Company and, except in the case of clause (i) or (iv) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (w) in the case of clause (i) above, US Revolving Loans constituting US LIBOR Loans shall no longer be available until such time as the Administrative Agent notifies US Company and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by any Borrower with respect to US LIBOR Loans which have not yet been incurred (zincluding by way of conversion) shall be deemed rescinded by such Borrower, (x) in the case of clause (ii) above, and subject to the exclusion of the UK Borrowers and Canadian Borrowers as Guarantors of the US Obligations contained in this Agreement and other Credit Documents, the US Borrowers, the UK Borrowers and the Canadian Borrowers, jointly and severally, agree to pay to such Lender, as applicable, upon such Lender’s written 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 in its sole discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to US Company by such Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto), (y) in the case of clause (iii) above, the respective Borrower or Borrowers shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent law and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (iiz) or (iii) above, it shall promptly notify the Borrower and, in the case of any clause (iv) above, Canadian LIBOR Loans (exclusive of Canadian LIBOR Loans which have theretofore been funded) shall no longer be available until such Lender, time as the Administrative AgentAgent notifies the Canadian Borrowers and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, if and any Notice of Borrowing given by any Canadian Borrower with respect to such event ceases to existCanadian LIBOR Loans which have not been incurred shall be deemed rescinded by such Canadian Borrower.
(bi) At In the case of US Revolving Loans, at any time that any Eurodollar US Revolving Loan constituting a US LIBOR Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii2.10(a)(ii), the affected Borrower may (may, and in the case of a Eurodollar US LIBOR Loan affected by the circumstances described in Section 1.10(a)(iii) 2.10(a)(iii), the affected Borrower shall) , either (x1) if the Eurodollar affected US LIBOR Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the such Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (y2) if the affected Eurodollar US LIBOR Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar US Revolving Loan constituting a US LIBOR Loan into a Base Rate Loan (which conversion, in the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law)Loan; provided that that, if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b2.10(b); (ii) in the case of UK Revolving Loans, at any time that any of the UK Revolving Loans is affected by the circumstances described in Section 2.10(a)(iii) then the relevant Borrower shall repay the applicable Lender’s participation in that UK Revolving Loan on the last day of the Interest Period for such UK Revolving Loan or, if earlier, the date specified by the Lender in the notice delivered to the Administrative Agent (being no earlier than the last day of any applicable grace period permitted by law); and (iii) in the case of Canadian Revolving Loans, at any time that any Canadian Revolving Loan constituting a Canadian LIBOR Loan is affected by the circumstances described in Section 2.10(a)(ii), the affected Borrower may, and in the case of a Canadian LIBOR Loan affected by the circumstances described in Section 2.10(a)(iii), the affected Borrower shall, either (1) if the affected Canadian LIBOR Loan is then being made initially or pursuant to a conversion, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 2.10(a)(ii) or (iii) or (2) if the affected Canadian LIBOR Loan is then outstanding, upon at least three Business Days’ written notice to the Administrative Agent, require the affected Lender to convert such Canadian Revolving Loan constituting a Canadian LIBOR Loan into a Canadian Prime Rate Loan; provided that, if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 2.10(b). Further, at any time that any of the UK Revolving Loans is affected by the circumstances described in Section 2.10(a)(i) then the applicable LIBOR or EURIBOR, as applicable, shall be calculated in respect of each Lender as the percentage rate of interest per annum reflecting such Lender’s cost of funding its participation in the UK Revolving Loans from whatever source it may reasonably select.
(c) If any Lender shall determines that a Change in Law concerning capital adequacy or liquidity will have determined after the Effective Date that effect of increasing the adoption amount of capital or effectiveness after the Effective Date of any applicable law, rule liquidity required or regulation regarding capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance expected to be maintained by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having based on the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such other corporation's capital or assets as a consequence existence of such Lender's Commitments ’s Revolving Loan Commitment hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy)hereunder, then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c)US Borrowers, the Borrower agrees UK Borrowers and the Canadian Borrowers, jointly and severally, agree to pay to such Lender Lender, as applicable, upon its written demand therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital or liquidity. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable; provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith ’s determination of compensation owing under this Section 1.10(c2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 2.10(c), will give prompt written notice thereof to US Company, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
(d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that (x) the affected Borrower or Borrowers shall not be required to compensate a Lender pursuant to this Section 2.10 for any increased costs or reductions incurred more than 180 days prior to the date on which such Lender notifies the Borrowers of the change in law or other circumstance described in Section 2.10(a)(ii) or 2.10(c) giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor and (y) if such change in law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof (to the extent that such period of retroactive effect is not already included in such 180-day period).
(e) Notwithstanding anything in this Agreement to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States, Canadian, United Kingdom or foreign regulatory authorities, in each case pursuant to Basel III, in each case shall be deemed to be a change after the Effective Date in a requirement of law or government rule, regulation or order, regardless of the date enacted, adopted, issued or implemented (including for purposes of this Section 2.10 and Sections 3.16, 3.17 and 3.18).
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date date of this Agreement affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Term Loans or the Term Notes or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or capital or franchise or capital taxes imposed in lieu thereof) thereof of such Lender imposed by or, in the case of a Lender that is a flow-through entity for tax purposes, a member or a partner of such Lender, pursuant to the laws of the country or national jurisdiction (aor any political subdivision thereof) in which it is organized or in which its principal office or applicable lending office is located or located) (bthe preceding sentence shall not apply to increased costs with respect to Taxes which are addressed in Section 4.04) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunder), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone promptly confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, but subject to Section 13.17, the Borrower agrees to pay to such Lender, upon such Lender's written 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 in its sole discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for and the calculation thereof, submitted to the Borrower by such Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (may, and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) ), the Borrower shall) , either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversionLoan, in the case of the circumstance described in Section 1.10(a)(iii)provided that, shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined determines that after the Effective Date that the adoption or effectiveness after the Effective Date introduction of any applicable law, rule or regulation regarding capital adequacy, or any change thereinin any applicable law or governmental rule, regulation, order, guideline, directive or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of concerning capital adequacy, or any such change in interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency, has or would will have the effect of reducing increasing the rate amount of return capital required or expected to be maintained by such Lender or any corporation controlling such Lender based on such Lender's or such other corporation's capital or assets as a consequence the existence of such Lender's Commitments hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy)hereunder, then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender Lender, upon its written demand therefor, but subject to the provisions of Section 13.17 (to the extent applicable), such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shallIf, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect due to clause either (i) below, may be made only by the Administrative Agent):
(i) on introduction of or any Interest Determination Date that, by reason change in or in the interpretation of any changes arising after the Effective Date affecting the applicable interbank market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
law or regulation or (ii) at the compliance with any time (but otherwise subject to Section 13.04(b)), that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request hereafter adopted, promulgated or made by any central bank or other governmental authority (whether or not having the force of law) or ), there shall be any increase in the interpretation or administration thereof and including the introduction of cost to any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to (A) a change in the basis of taxation of payments to a Lender of agreeing to make or making, funding or maintaining Loans, then the principal Borrower shall from time to time, upon demand by such Lender (with a copy of or interest on such demand to the Loans or any other amounts payable hereunder Administrative Agent but subject to the terms of Section 2.14), pay (except for taxes and related amounts with respect to which additional amounts are payable or excluded funds provided by the Lessee as Supplemental Rent pursuant to Section 4.04 and 3.3 of the Lease after the Basic Term Commencement Date or pursuant to Article IX or Section 13.6 of the Participation Agreement prior to the Basic Term Commencement Date) to the Administrative Agent for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) account of such Lender imposed additional amounts sufficient to compensate such Lender for such increased cost. A certificate as to the amount of such increased cost, submitted to the Borrower and the Administrative Agent by the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or such Lender, shall be conclusive and binding for all purposes, absent manifest error.
(b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution or delivery of this Agreement or If any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunder), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, the interbank market or the position of such Lender in such market; or
(iii) at any time, determines that the making or continuance of any Eurodollar Loan has been made (x) unlawful by compliance with any law or governmental rule, regulation or order any guideline or request from any central bank or other governmental authority (whether or would conflict with any governmental rule, regulation, guideline, request or order not having the force of law law, but with which such Lender customarily complies even though the failure to comply therewith would not be unlawful) in each case promulgated or (y) impracticable as a result of a contingency occurring made after the Effective Date which materially and adversely date hereof) affects or would affect the applicable interbank market;
(a) upon the subsequent receipt amount of such notice) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period capital required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice or expected to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) the Borrower shall) either (x) if the Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined after the Effective Date that the adoption or effectiveness after the Effective Date of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance maintained by such Lender or any corporation controlling such Lender with any request and that the amount of such capital is increased by or directive regarding capital adequacy (whether or not having based upon the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such other corporation's capital or assets as a consequence existence of such Lender's Commitments commitment to lend hereunder and other commitments of this type or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoptionupon the Loans, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy), then from time to timethen, upon written demand by such Lender (with a copy of such demand to the Administrative Agent), accompanied by Agent but subject to the notice referred to in the next succeeding sentence terms of this clause (cSection 2.14), the Borrower agrees shall pay (with funds provided by the Lessee as Supplemental Rent pursuant to pay Section 3.3 of the Lease after the Basic Term Commencement Date or pursuant to Article IX or Section 13.6 of the Participation Agreement prior to the Basic Term Commencement Date) to the Administrative Agent for the account of such Lender Lender, from time to time as specified by such Lender, additional amount or amounts as will sufficient to compensate such Lender or such other corporation for such reduction in the rate light of return such circumstances, to the extent that such Lender reasonably determines such increase in capital to be allocable to the existence of such Lender's commitment to lend hereunder or upon the Loans. A certificate as to such Lender or such other corporation. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof submitted to the Borrower (a copy of which shall be sent and the Administrative Agent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis be conclusive and binding for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith determination of compensation owing under this Section 1.10(c) shallall purposes, absent manifest error.
(c) Without limiting the effect of the foregoing, the Borrower shall pay to each Lender on the last day of the Interest Period therefor so long as such Lender is maintaining reserves against "Eurocurrency liabilities" under Regulation D an additional amount (determined by such Lender and notified to the Borrower through the Administrative Agent) equal to the product of the following for each Eurodollar Loan for each day during such Interest Period:
(i) the principal amount of such Eurodollar Loan outstanding on such day; and
(ii) the remainder of (x) a fraction the numerator of which is the rate (expressed as a decimal) at which interest accrues on such Eurodollar Loan for such Interest Period as provided in this Credit Agreement (less the Applicable Percentage) and the denominator of which is one minus the ----- effective rate (expressed as a decimal) at which such reserve requirements are imposed on such Lender on such day minus (y) such numerator; and
(iii) 1/360.
(d) Without affecting its rights under Section 2.11(a) or 2.11(b) or any other provision of this Agreement, each Lender agrees that if there is any increase in any cost to or reduction in any amount receivable by such Lender with respect to which the Borrower would be final obligated to compensate such Lender pursuant to Sections 2.11(a) or 2.11(b), such Lender shall use reasonable efforts to select an alternative lending office which would not result in any such increase in any cost to or reduction in any amount receivable by such Lender; provided, however, that no Lender shall be obligated to select an -------- ------- alternative lending office if such Lender determines that (i) as a result of such selection such Lender would be in violation of any applicable law, regulation, treaty, or guideline, or would incur additional costs or expenses or (ii) such selection would be inadvisable for regulatory reasons or inconsistent with the interests of such Lender.
(e) Notwithstanding any other provision of this Agreement, if any Lender shall notify the Administrative Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or any central bank or other governmental authority asserts that it is unlawful, for any Lender to perform its obligations hereunder to make or maintain Eurodollar Loans, then (i) each Eurodollar Loan will automatically, at the earlier of the end of the Interest Period for such Eurodollar Loan or the date required by law, convert into an ABR Loan and conclusive and binding on all (iii) the parties heretoobligation of the Lenders to make, convert or continue Eurodollar Loans shall be suspended until the Administrative Agent shall notify the Borrower that such Lender has determined that the circumstances causing such suspension no longer exist.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date required date of determination of the Eurodollar Rate that, by reason of any changes arising after the Effective Date affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Loans such Eurodollar Loan or any other amounts payable hereunder hereunder; (except for taxes and related amounts with respect to Indemnified Taxes or Other Taxes (which additional amounts are payable or excluded pursuant to covered by Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof4.04) of such Lender imposed by the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or (b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunder), or (BExcluded Taxes) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, Lender or the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed a Notice of Borrowing for or into Base Rate Loans unless such Notice of Borrowing is rescinded by the Borrower prior to the making of such Borrowing or such conversion, (y) in the case of clause (ii) above, the Borrower shall, subject to the provisions of Section 14.16 (to the extent applicable), pay to such Lender, 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 in its sole discretion shall determine) as shall be required to compensate such Lender for increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing the basis for the calculation thereof, submitted to the Borrower by such Lender in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b1.07(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Lender, the obligations of such Lender to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein shall be reinstated. In addition, if the Administrative Agent gives notice to the Borrower that the events described in clause (i) above cease to exist, then the obligations of the Lenders to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein (but subject to clause (iii) above) shall also be reinstated.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii1.07(a)(ii) or (iii), the Borrower may (and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii1.07(a)(iii) the Borrower shall) either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii1.07(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversionLoan, in the case of the circumstance described in Section 1.10(a)(iii)provided that, shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b1.07(b).
(c) If at any time any Lender shall have determined determines that, after the Effective Date that Date, the adoption introduction of or effectiveness after any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law and including, without limitation, those announced or published prior to the Effective Date of any applicable law, rule or regulation regarding Date) concerning capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency charged with agency, will have the interpretation effect of increasing the amount of capital required or administration thereof, or compliance expected to be maintained by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having based on the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such other corporation's capital or assets as a consequence existence of such Lender's ’s Commitments hereunder or its obligations hereunder hereunder, then the Borrower shall, subject to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance the provisions of Section 14.16 (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacythe extent applicable), then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender Lender, upon its written demand therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in ’s reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith determination of compensation owing under this Section 1.10(c1.07(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.07(c), will give prompt written notice thereof to the Borrower, which notice shall show the basis for calculation of such additional amounts. In addition, each such Lender, upon determining that the circumstances giving rise to the payment of additional amounts pursuant to this Section 1.07(c) cease to exist, will give prompt written notice thereof to the Borrower.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Loans such Eurodollar Loan or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by Lender, or any franchise tax based on the net income or net profits of such Lender, in either case pursuant to the laws of the United States of America, the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or (b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business any subdivision thereof or therein), but for the execution or delivery of this Agreement or any other Credit Document or the exercise without duplication of any rights or performance amounts payable in respect of any obligations hereunder or thereunderTaxes pursuant to Section 5.04(a), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, Lender or the interbank Eurodollar market or the position of such Lender in such marketmarket (except as a result of a deterioration in the creditworthiness of such Lender subsequent to the date hereof); or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone confirmed in writing) to the subsequent receipt Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrowers and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by the Borrowers with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrowers, (y) in the case of clause (ii) above, the Borrowers jointly and severally agree to, subject to the provisions of Section 13.15 (to the extent applicable), pay to such Lender, 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 in its sole discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing the basis for the calculation thereof, submitted to the Borrowers by such Lender in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower Borrowers shall take one of the actions specified in Section 1.10(b2.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower Borrowers of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower Borrowers and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Lender, the obligations of such Lender to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein shall be reinstated.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii2.10(a)(ii) or (iii), the Borrower Borrowers may (and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii2.10(a)(iii) the Borrower shall) either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was Borrowers were notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii2.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversionLoan, in the case of the circumstance described in Section 1.10(a)(iii)provided that, shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b2.10(b).
(c) If at any Lender shall have determined time after the Effective Date any Lender determines that the adoption introduction of or effectiveness after the Effective Date of any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law, rule or regulation regarding ) concerning capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with agency, will have the interpretation effect of increasing the amount of capital required or administration thereof, or compliance expected to be maintained by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having based on the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such other corporation's capital or assets as a consequence existence of such Lender's Commitments Commitment hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy)hereunder, then from time to timethe Borrowers jointly and severally agree, upon written demand by such Lender (with a copy subject to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence provisions of this clause (c), the Borrower agrees to pay to such Lender such additional amount or amounts as will compensate such Lender or such other corporation for such reduction in the rate of return to such Lender or such other corporation. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto.Section
Appears in 1 contract
Samples: Credit Agreement (Furniture Brands International Inc)
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date date of this Agreement affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since Change in Law after the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or requestDate, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for (x) taxes and related amounts with respect to which additional amounts are payable or excluded paid pursuant to Section 4.04 and for 4.04, (y) changes in the rate of tax on, or determined by reference to, the net income or net profits (or any franchise or capital taxes similar tax imposed in lieu thereofof a net income or net profits tax) of such Lender imposed by pursuant to the laws of the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein) or (bz) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunder), taxes under FATCA or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone promptly confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower agrees to pay to such Lender, upon such Lender’s written 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 in its reasonable discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to the Borrower by such Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (may, and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) 1.10(a)( iii), the Borrower shall) , either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii1.10(a)( ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' ’ written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversionLoan; provided, in the case of the circumstance described in Section 1.10(a)(iii)that, shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined determines that any Change in Law after the Effective Date that date on which it became a Lender hereunder, will have the adoption effect of increasing the amount of capital or effectiveness after the Effective Date of any applicable law, rule liquidity required or regulation regarding capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance expected to be maintained by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having based on the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such other corporation's capital or assets as a consequence existence of such Lender's ’s Commitments or Loans hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy)hereunder, then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender Lender, upon its written demand therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital or liquidity. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable; provided, that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith ’s determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date affecting the applicable interbank market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of the Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Rate Loan because of (x) any change since arising after the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the such Loans or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) based on net income of such Lender imposed by pursuant to the jurisdiction (a) laws of the country in which it is organized or in which its principal office or applicable lending office is located or (bany subdivision thereof or therein) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunder), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D requirements (except to the extent included in the computation of the Eurodollar Rate Rate) or any special deposit, assessment or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (or its applicable lending office) and/or (y) other circumstances arising since the Effective Date affecting such Lender, the applicable interbank market or the position of such Lender and lenders generally in such market; or
(iii) at any timetime after the date of this Agreement, that the making or continuance of any Eurodollar Rate Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone promptly confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Rate Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or any Notice of Conversion/Continuation given by the Borrower with respect to such Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower shall, subject to the provisions of Section 13.17 (to the extent applicable), pay to such Lender, within 10 days of its written 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 in good faith shall reasonably determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to the Borrower by such Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Eurodollar Rate Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and and, in the case of a Eurodollar Rate Loan affected by the circumstances described in Section 1.10(a)(iii) the Borrower ), shall) either (x) if the affected Eurodollar Rate Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Rate Loan is then outstanding, upon at least three two Business Days' written notice to the Administrative Agent, require the affected Lender in the case of a Eurodollar Rate Loan, to convert such Eurodollar Rate Loan into a Base Rate Loan (which conversionLoan, in the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any timetime as described above in this clause (b), then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any Lender shall have determined time after the Effective Date any Lender determines that the adoption introduction of or effectiveness any change (which introduction or change shall have occurred after the Effective Date of Date) in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law, rule or regulation regarding ) concerning capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by the NAIC or any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, will have the effect of increasing the amount of capital required or compliance expected to be maintained by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having based on the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such other corporation's capital or assets as a consequence existence of such Lender's Commitments Commitment hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy)hereunder, then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay pay, subject to the provisions of Section 13.17 (to the extent applicable), to such Lender Lender, within 10 days of its written request therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower, which notice shall show in reasonable detail the basis for calculation of such additional amounts.
Appears in 1 contract
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and final, conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Rate Determination Date that, by reason of any changes arising after the Effective Closing Date affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such any Lender shall incur increased costs or reductions reduction in the amounts received or receivable hereunder with respect to any Eurodollar Rate Loan because of (x) any change since the Effective Date Closing Date, in the case of any Eurodollar Rate Revolving Loan or Eurodollar Rate Term Loan, since the First Restatement Date, in the case of any Eurodollar Rate Additional Term Loan, and since the Restatement Date, in the case of any Eurodollar Rate Supplemental Revolving Loan or any Eurodollar Rate D Tranche Term Loan, in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments to a any Lender of the principal of or interest on the Loans Obligations or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for (a) changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or and (b) in United States withholding taxes, which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for shall be governed by the execution or delivery provisions of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunder), SECTION 3.11) or (B) a change in official reserve requirements, requirements (but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate Rate) and/or (y) other circumstances arising since the Effective Date Closing Date, in the case of any Revolving Lender or Term Lender, since the First Restatement Date, in the case of any Additional Lender, and since the Restatement Date, in the case of any Supplemental Revolving Lender or any D Tranche Lender, affecting such Lender, Lender or the interbank Eurodollar market or the position of such Lender in such marketmarket (excluding, however, differences in a Lender's cost of funds from those of the Agent which are solely the result of credit differences between such Lender and the Agent); or
(iii) at any time, that the making or continuance of any Eurodollar Rate Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date Closing Date, in the case of any Eurodollar Rate Revolving Loan or Eurodollar Rate Term Loan, since the First Restatement Date, in the case of any Eurodollar Rate Additional Term Loan, and since the Restatement Date, in the case of any Eurodollar Rate Supplemental Revolving Loan or any Eurodollar Rate D Tranche Term Loan, which materially and adversely affects the applicable interbank market;
Eurodollar market in general; then, and in any such event, such Lender (aor the Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the Borrower and, except in the case of clause (i) above, to the Agent of such determination (which notice the Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Rate Loans shall no longer be available until such time as the Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Agent no longer exist, and any Notice of Borrowing or Notice of Conversion or Continuation given by the Borrower with respect to Eurodollar Rate Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower shall pay to such Lender, upon written demand therefore, such additional amounts (in the subsequent receipt form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing the basis for the calculation thereof in reasonable detail, submitted to the Borrower by such Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto; PROVIDED, HOWEVER, that the failure to give any such notice (unless the respective Lender has intentionally withheld or delayed such notice, in which case the respective Lender shall not be entitled to receive additional amounts pursuant to this SECTION 2.13(A)(Y) for periods occurring prior to the 180th day before the giving of such notice) shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this SECTION 2.13(A)(Y), and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(bSECTION 2.13(B) as promptly as possible and, in any event, within the time period required by law. Each In determining such additional amounts pursuant to clause (y) of the Administrative Agent and immediately preceding sentence, each Lender agrees that if it gives notice shall act reasonably and in good faith and will, to the Borrower of any extent the increased costs or reductions in amounts receivable relate to such Lender's loans in general and are not specifically attributable to a Loan hereunder, use averaging and attribution methods which are reasonable and which cover all loans similar to the Loans made by such Lender whether or not the loan documentation for such other loans permits the Lender to receive increased costs of the events type described in clause (ithis SECTION 2.13(A), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Eurodollar Rate Loan is affected by the circumstances described in Section 1.10(a)(iiSECTION 2.13(A)(II) or OR (iiiIII), the Borrower may (and in the case of a Eurodollar Rate Loan affected by the circumstances described in Section 1.10(a)(iiiSECTION 2.13(A)(III) the Borrower shall) either (xi) if the affected Eurodollar Rate Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(iiSECTION 2.13(A)(II) OR (III), cancel the respective Borrowing, or (iii) or (yii) if the affected Eurodollar Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Rate Loan into a Base Prime Rate Loan (which conversionLoan, in the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided PROVIDED that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(bSECTION 2.13(B).
(c) If any Lender shall have determined after the Effective Date that the adoption or effectiveness after the Effective Date of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such other corporation's capital or assets as a consequence of such Lender's Commitments hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy), then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender such additional amount or amounts as will compensate such Lender or such other corporation for such reduction in the rate of return to such Lender or such other corporation. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto.
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Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date date of this Agreement affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Loans or the Notes or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by pursuant to the laws of the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or (bany subdivision thereof or therein) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business but for the execution or delivery of this Agreement or any other Credit Document or the exercise of any rights or performance of any obligations hereunder or thereunder), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date affecting such Lender, the interbank Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (a) upon or the subsequent receipt of such notice) and (z) Administrative Agent, in the case of clause (iiii) above, the Borrower ) shall take one of the actions specified promptly give notice (by telephone promptly confirmed in Section 1.10(bwriting) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower and, except in the case of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) the Borrower shall) either (x) if the Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined after the Effective Date that the adoption or effectiveness after the Effective Date of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such other corporation's capital or assets as a consequence of such Lender's Commitments hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy), then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to pay to such Lender such additional amount or amounts as will compensate such Lender or such other corporation for such reduction in the rate of return to such Lender or such other corporation. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto.
Appears in 1 contract
Samples: Credit Agreement (Nuco2 Inc /Fl)
Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the Effective Date date of this Agreement affecting the applicable interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time (but otherwise subject to Section 13.04(b))time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loan because of (x) any change since the Effective Date date of this Agreement in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to to: (A) a change in the basis of taxation of payments payment to a any Lender of the principal of or interest on the Loans such Eurodollar Loan or any other amounts payable hereunder (except for taxes and related amounts with respect to which additional amounts are payable or excluded pursuant to Section 4.04 and for changes in the rate of tax on, or determined by reference to, the net income or net profits (or franchise or capital taxes imposed in lieu thereof) of such Lender imposed by Lender, or any corporation controlling such Lender, or any franchise tax based on the net income or profits of such Lender, or any corporation controlling such Lender, in either case pursuant to the laws of the United States of America or the jurisdiction (a) in which it is organized or in which its principal office or applicable lending office is located or (b) in which it is otherwise doing business (other than a jurisdiction in which it would not have been treated as doing business any subdivision thereof or therein), but for the execution or delivery of this Agreement or any other Credit Document or the exercise without duplication of any rights or performance amounts payable in respect of any obligations hereunder or thereunderTaxes pursuant to Section 4.04(a), or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances arising since the Effective Date date of this Agreement affecting such Lender, the interbank Eurodollar market or the position of such Lender lenders generally in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan has been made (x) unlawful by any law or governmental rule, regulation or order order, (or would conflict y) impossible by compliance by any Lender in good faith with any governmental rule, regulation, guideline, request (whether or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawfullaw) or (yz) impracticable as a result of a contingency occurring after the Effective Date date of this Agreement which materially and adversely affects the applicable interbank Eurodollar market;
; then, and in any such event, such Lender (aor the Administrative Agent, in the case of clause (i) upon above) shall promptly give notice (by telephone confirmed in writing) to the subsequent receipt Borrower and, except in the case of clause (i) above, to the Administrative Agent of such noticedetermination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower shall pay to such Lender, 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 in its sole discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing the basis for the calculation thereof, submitted to the Borrower by such Lender in good faith shall, absent manifest error, be final and conclusive and binding on all the parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law. Each of the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of the events described in clause (i), (ii) or (iii) above, it shall promptly notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to exist. If any such event described in clause (iii) above ceases to exist as to a Lender, the obligations of such Lender to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and conditions contained herein shall be reinstated.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurodollar Loan affected by the circumstances described in Section 1.10(a)(iii) the Borrower shall) either (x) if the affected Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversionLoan, in the case of the circumstance described in Section 1.10(a)(iii)provided that, shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law); provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Lender shall have determined after the Effective Date determines that the adoption introduction of or effectiveness after the Effective Date of any change in any applicable law or governmental rule, regulation, order, guideline, directive or request (whether or not having the force of law, rule or regulation regarding ) concerning capital adequacy, or any change therein, or any change after the Effective Date in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with agency, will have the interpretation effect of increasing the amount of capital required or administration thereof, or compliance expected to be maintained by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having based on the force of law) of any such governmental authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such other corporation's capital or assets as a consequence existence of such Lender's Commitments hereunder or its obligations hereunder to a level below that which such Lender or such other corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation's policies with respect to capital adequacy)hereunder, then from time to time, upon written demand by such Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next succeeding sentence of this clause (c), the Borrower agrees to shall pay to such Lender Lender, upon its written demand therefor, such additional amount or amounts as will shall be 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 to such Lender or such other corporationcorporation as a result of such increase of capital. Each LenderIn determining such additional amounts, upon determining each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which notice shall set forth such Lender's basis for asserting its rights under this Section 1.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder, although the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A Lender's good faith determination of compensation owing under this Section 1.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower, which notice shall show the basis for calculation of such additional amounts.
Appears in 1 contract
