No Deductions; Increased Costs; Break Funding Payments. (a) Except as otherwise required by law, each payment by the Applicant to the Administrative Agent or any Bank under this Agreement or any other Related Document shall be made without setoff or counterclaim and without withholding for or on account of any present or future taxes (other than overall net income taxes on the recipient imposed by any jurisdiction having control of such recipient) imposed by or within the jurisdiction in which the Applicant is domiciled, any jurisdiction from which the Applicant makes any payment hereunder, or (in each case) any political subdivision or taxing authority thereof or therein. If any such withholding is so required, the Applicant shall make the withholding, pay the amount withheld to the appropriate Governmental Authority before penalties attach thereto or interest accrues thereon and forthwith pay such additional amount as may be necessary to ensure that the net amount actually received by the Administrative Agent, the Issuing Bank or such Bank free and clear of such taxes (including such taxes on such additional amount) is equal to the amount which the Administrative Agent, the Issuing Bank or such Bank would have received had such withholding not been made. If the Administrative Agent, the Issuing Bank or any Bank pays any amount in respect of any such taxes, penalties or interest, the Applicant shall reimburse the Administrative Agent, the Issuing Bank or such Bank, as applicable, for that payment on demand in the currency in which such payment was made. If the Applicant pays any such taxes, penalties or interest, it shall deliver official tax receipts evidencing that payment or certified copies thereof to the Administrative Agent on or before the thirtieth day after payment. (b) If the Code or any newly adopted law, treaty, regulation, guideline or directive, or any change in any, law, treaty, regulation, guideline or directive or any new or modified interpretation of any of the foregoing by any authority or agency charged with the administration or interpretation thereof or any central bank or other fiscal, monetary or other authority having jurisdiction over any Bank or the transactions contemplated by this Agreement (whether or not having the force of law) shall: (i) limit the deductibility of interest on funds obtained by such Bank to pay any of its liabilities or subject such Bank to any tax, duty, charge, deduction or withholding on or with respect to payments relating to the Bonds, the Letter of Credit or this Agreement, or any amount paid or to be paid by such Bank as the issuer of the Letter of Credit (other than any tax measured by or based upon the overall net income of such Bank imposed by any jurisdiction having control over such Bank); (ii) impose, modify, require, make or deem applicable to such Bank any reserve requirement, capital requirement, special deposit requirement, insurance assessment or similar requirement against any assets held by, deposits with or for the account of, or loans, letters of credit or commitments by, an office of such Bank; (iii) change the basis of taxation of payments due such Bank under this Agreement or the Bonds (other than by a change in taxation of the overall net income of such Bank); (iv) cause or deem letters of credit to be assets held by such Bank and/or as deposits on its books; or (v) impose upon such Bank any other condition with respect to any amount paid or payable to or by such Bank or with respect to this Agreement or any of the other Related Documents; and the result of any of the foregoing (for purposes of this Section 9.1(b), the “Change in Law”; provided, however, for the purposes of this Agreement, the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act and all requirements, rules, guidelines or directives in connection therewith are deemed to have gone into effect and adopted thirty (30) days after the date of this Agreement) is to increase the cost to such Bank of making any payment or maintaining the Letter of Credit, or to reduce the amount of any payment (whether of principal, interest or otherwise) receivable by such Bank, or to reduce the rate of return on the capital of such Bank or to require such Bank to make any payment on or calculated by reference to the gross amount of any sum received by it, in each case by an amount which such Bank in its reasonable judgment deems material, then: (1) such Bank shall promptly notify the Applicant in writing of such event; (2) such Bank shall promptly deliver to the Applicant a certificate stating the change which has occurred or the reserve requirements or other costs or conditions which have been imposed on such Bank or the request, direction or requirement with which it has complied, together with the date thereof, the amount of such increased cost, reduction or payment and a reasonably detailed description of the way in which such amount has been calculated, and such Bank’s determination of such amounts, absent fraud or manifest error, shall be conclusive; and (3) the Applicant shall pay to such Bank, from time to time as specified by such Bank, such an amount or amounts as will compensate such Bank for such additional cost, reduction or payment; provided that the Applicant shall not be required to compensate such Bank pursuant to this Section 9.1(b) for any increased costs, reductions or payments incurred more than 90 days prior to the date that such Bank notifies the Applicant of the Change in Law giving rise to such increased costs, reductions or payments and of such Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs, reductions or payments is retroactive, then the 90-day period referred to above shall be extended to include the period of retroactive effect thereof. The protection of this Section 9.1(b) shall be available to the Banks regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which has been imposed; provided, however, that if it shall be later determined by any Bank that any amount so paid by the Applicant pursuant to this Section 9.1(b) is in excess of the amount payable under the provisions hereof, such Bank shall refund such excess amount to the Applicant. (c) If any payment of principal of any Eurodollar Advance is made by the Applicant to or for the account of a Bank other than on the last day of the Interest Period applicable thereto, as a result of a payment or a conversion pursuant to Sections 2.3(d), 2.3(e) or 2.15, as a result of an Event of Default or for any other reason, or by an assignee or the Applicant to a Bank other than on the last day of the Interest Period for such Eurodollar Advance upon an assignment of rights and obligations under this Agreement pursuant to Section 9.7 as a result of a demand by the Applicant pursuant to Section 9.7(a), the Applicant shall, upon demand by such Bank (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Bank any amounts required to compensate such Bank for any additional losses, costs or expenses that it may reasonably incur as a result of such payment or conversion, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Bank to fund or maintain such Eurodollar Advance.
Appears in 4 contracts
Samples: Reimbursement Agreement (Agl Resources Inc), Reimbursement Agreement (Agl Resources Inc), Reimbursement Agreement (Agl Resources Inc)
No Deductions; Increased Costs; Break Funding Payments. (a) Except as otherwise required by law, each payment by the Applicant to the Administrative Agent or any Bank under this Agreement or any other Related Document shall be made without setoff or counterclaim and without withholding for or on account of any present or future taxes (other than overall net income taxes on the recipient imposed by any jurisdiction having control of such recipient) imposed by or within the jurisdiction in which the Applicant is domiciled, any jurisdiction from which the Applicant makes any payment hereunder, or (in each case) any political subdivision or taxing authority thereof or therein. If any such withholding is so required, the Applicant shall make the withholding, pay the amount withheld to the appropriate Governmental Authority before penalties attach thereto or interest accrues thereon and forthwith pay such additional amount as may be necessary to ensure that the net amount actually received by the Administrative Agent, the Issuing Bank or such Bank free and clear of such taxes (including such taxes on such additional amount) is equal to the amount which the Administrative Agent, the Issuing Bank or such Bank would have received had such withholding not been made. If the Administrative Agent, the Issuing Bank or any Bank pays any amount in respect of any such taxes, penalties or interest, the Applicant shall reimburse the Administrative Agent, the Issuing Bank or such Bank, as applicable, for that payment on demand in the currency in which such payment was made. If the Applicant pays any such taxes, penalties or interest, it shall deliver official tax receipts evidencing that payment or certified copies thereof to the Administrative Agent on or before the thirtieth day after payment.
(b) If the Code or any newly adopted law, treaty, regulation, guideline or directive, or any change in any, law, treaty, regulation, guideline or directive or any new or modified interpretation of any of the foregoing by any authority or agency charged with the administration or interpretation thereof or any central bank or other fiscal, monetary or other authority having jurisdiction over any Bank or the transactions contemplated by this Agreement (whether or not having the force of law) shall:
(i) limit the deductibility of interest on funds obtained by such Bank to pay any of its liabilities or subject such Bank to any tax, duty, charge, deduction or withholding on or with respect to payments relating to the Bonds, the Letter of Credit or this Agreement, or any amount paid or to be paid by such Bank as the issuer of the Letter of Credit (other than any tax measured by or based upon the overall net income of such Bank imposed by any jurisdiction having control over such Bank);
(ii) impose, modify, require, make or deem applicable to such Bank any reserve requirement, capital requirement, special deposit requirement, insurance assessment or similar requirement against any assets held by, deposits with or for the account of, or loans, letters of credit or commitments by, an office of such Bank;
(iii) change the basis of taxation of payments due such Bank under this Agreement or the Bonds (other than by a change in taxation of the overall net income of such Bank);
(iv) cause or deem letters of credit to be assets held by such Bank and/or as deposits on its books; or
(v) impose upon such Bank any other condition with respect to any amount paid or payable to or by such Bank or with respect to this Agreement or any of the other Related Documents; and the result of any of the foregoing (for purposes of this Section 9.1(b), the “Change in Law”; provided, however, for the purposes of this Agreement, the DxxxXxxx-Fxxxx Xxxxx Xxxx Street Reform and Consumer Protection Act and all requirements, rules, guidelines or directives in connection therewith are deemed to have gone into effect and adopted thirty (30) days after the date of this Agreement) is to increase the cost to such Bank of making any payment or maintaining the Letter of Credit, or to reduce the amount of any payment (whether of principal, interest or otherwise) receivable by such Bank, or to reduce the rate of return on the capital of such Bank or to require such Bank to make any payment on or calculated by reference to the gross amount of any sum received by it, in each case by an amount which such Bank in its reasonable judgment deems material, then:
(1) such Bank shall promptly notify the Applicant in writing of such event;
(2) such Bank shall promptly deliver to the Applicant a certificate stating the change which has occurred or the reserve requirements or other costs or conditions which have been imposed on such Bank or the request, direction or requirement with which it has complied, together with the date thereof, the amount of such increased cost, reduction or payment and a reasonably detailed description of the way in which such amount has been calculated, and such Bank’s determination of such amounts, absent fraud or manifest error, shall be conclusive; and
(3) the Applicant shall pay to such Bank, from time to time as specified by such Bank, such an amount or amounts as will compensate such Bank for such additional cost, reduction or payment; provided that the Applicant shall not be required to compensate such Bank pursuant to this Section 9.1(b) for any increased costs, reductions or payments incurred more than 90 days prior to the date that such Bank notifies the Applicant of the Change in Law giving rise to such increased costs, reductions or payments and of such Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs, reductions or payments is retroactive, then the 90-day period referred to above shall be extended to include the period of retroactive effect thereof. The protection of this Section 9.1(b) shall be available to the Banks regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which has been imposed; provided, however, that if it shall be later determined by any Bank that any amount so paid by the Applicant pursuant to this Section 9.1(b) is in excess of the amount payable under the provisions hereof, such Bank shall refund such excess amount to the Applicant.
(c) If any payment of principal of any Eurodollar Advance is made by the Applicant to or for the account of a Bank other than on the last day of the Interest Period applicable thereto, as a result of a payment or a conversion pursuant to Sections 2.3(d), 2.3(e) or 2.15, as a result of an Event of Default or for any other reason, or by an assignee or the Applicant to a Bank other than on the last day of the Interest Period for such Eurodollar Advance upon an assignment of rights and obligations under this Agreement pursuant to Section 9.7 as a result of a demand by the Applicant pursuant to Section 9.7(a), the Applicant shall, upon demand by such Bank (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Bank any amounts required to compensate such Bank for any additional losses, costs or expenses that it may reasonably incur as a result of such payment or conversion, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Bank to fund or maintain such Eurodollar Advance.
Appears in 4 contracts
Samples: Reimbursement Agreement (Agl Resources Inc), Reimbursement Agreement (Agl Resources Inc), Reimbursement Agreement (Agl Resources Inc)
No Deductions; Increased Costs; Break Funding Payments. (a) Except as otherwise required by law, each payment by the Applicant to the Administrative Agent or any Bank under this Agreement or any other Related Document shall be made without setoff or counterclaim and without withholding for or on account of any present or future taxes (other than overall net income taxes on the recipient imposed by any jurisdiction having control of such recipient) imposed by or within the jurisdiction in which the Applicant is domiciled, any jurisdiction from which the Applicant makes any payment hereunder, or (in each case) any political subdivision or taxing authority thereof or therein. If any such withholding is so required, the Applicant shall make the withholding, pay the amount withheld to the appropriate Governmental Authority before penalties attach thereto or interest accrues thereon and forthwith pay such additional amount as may be necessary to ensure that the net amount actually received by the Administrative Agent, the Issuing Bank or such Bank free and clear of such taxes (including such taxes on such additional amount) is equal to the amount which the Administrative Agent, the Issuing Bank or such Bank would have received had such withholding not been made. If the Administrative Agent, the Issuing Bank or any Bank pays any amount in respect of any such taxes, penalties or interest, the Applicant shall reimburse the Administrative Agent, the Issuing Bank or such Bank, as applicable, for that payment on demand in the currency in which such payment was made. If the Applicant pays any such taxes, penalties or interest, it shall deliver official tax receipts evidencing that payment or certified copies thereof to the Administrative Agent on or before the thirtieth day after payment.
(bi) If the Code or any newly adopted law, treaty, regulation, guideline or directive, or any change Change in any, law, treaty, regulation, guideline or directive or any new or modified interpretation of any of the foregoing by any authority or agency charged with the administration or interpretation thereof or any central bank or other fiscal, monetary or other authority having jurisdiction over any Bank or the transactions contemplated by this Agreement (whether or not having the force of law) Law shall:
(i) limit the deductibility of interest on funds obtained by such Bank to pay any of its liabilities or subject such Bank to any tax, duty, charge, deduction or withholding on or with respect to payments relating to the Bonds, the Letter of Credit or this Agreement, or any amount paid or to be paid by such Bank as the issuer of the Letter of Credit (other than any tax measured by or based upon the overall net income of such Bank imposed by any jurisdiction having control over such Bank);
(ii1) impose, modify, require, make modify or deem applicable to such Bank any reserve requirement, capital requirementreserve, special deposit or similar requirement (including any compulsory loan requirement, insurance assessment charge or similar requirement other assessment) against any assets held byof, deposits with or for the account of, or loans, letters of credit or commitments extended by, an office of any Bank (except any such reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank;
(iii2) change impose on any Bank or the basis of taxation of payments due such Issuing Bank under or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or the Bonds (other than by a change in taxation of the overall net income of such Bank);
(iv) cause Eurodollar Advances or deem letters of credit to be assets held ABR Advances made by such Bank and/or as deposits on its booksor the Letter of Credit or participation therein; or
(v3) impose upon such Bank subject any other condition with respect Recipient to any amount paid Taxes (other than (1) Indemnified Taxes and (2) Other Connection Taxes on gross or payable to net income, profits or by such Bank revenue (including value-added or with respect to this Agreement similar Taxes)) on its loans, loan principal, letters of credit, commitments, or any of the other Related Documentsobligations, or its deposits, reserves, other liabilities or capital attributable thereto; and the result of any of the foregoing (for purposes of this Section 9.1(b), the “Change in Law”; provided, however, for the purposes of this Agreement, the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act and all requirements, rules, guidelines or directives in connection therewith are deemed to have gone into effect and adopted thirty (30) days after the date of this Agreement) is shall be to increase the cost to such Bank or such other Recipient of making or maintaining any payment Liquidity Advance (or of maintaining its obligation to make any such Liquidity Advance) or to increase the cost to such Bank, the Issuing Bank or such other Recipient of participating in, issuing or maintaining the Letter of Credit, Credit or to reduce the amount of any payment sum received or receivable by such Bank, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) receivable by ), then the Applicant will pay to such Bank, the Issuing Bank or to reduce such other Recipient, as the case may be, such additional amount or amounts as will compensate such Bank, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(ii) If any Bank or the Issuing Bank determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Bank’s or the Issuing Bank’s capital or on the capital of such Bank or to require such Bank to make any payment on or calculated by reference to the gross amount of any sum received by it, in each case by an amount which such Bank in its reasonable judgment deems material, then:
(1) such Bank shall promptly notify the Applicant in writing of such event;
(2) such Bank shall promptly deliver to the Applicant a certificate stating the change which has occurred Bank’s or the reserve requirements Issuing Bank’s holding company, if any, as a consequence of this Agreement or other costs the Loans made by, or conditions participations in the Letter of Credit held by, such Bank, or the Letter of Credit issued by the Issuing Bank, to a level below that which have been imposed on such Bank or the request, direction Issuing Bank or requirement with which it has complied, together with the date thereof, the amount of such increased cost, reduction or payment and a reasonably detailed description of the way in which such amount has been calculated, and such Bank’s determination or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Bank’s or the Issuing Bank’s policies and the policies of such amountsBank’s or the Issuing Bank’s holding company with respect to capital adequacy and liquidity), absent fraud or manifest error, shall be conclusive; and
(3) the Applicant shall pay to such Bank, then from time to time as specified by the Applicant will pay to such Bank or the Issuing Bank, as the case may be, such an additional amount or amounts as will compensate such Bank or the Issuing Bank or such Bank’s or the Issuing Bank’s holding company for any such additional costreduction suffered.
(iii) A certificate of a Bank or the Issuing Bank setting forth the amount or amounts necessary to compensate such Bank or the Issuing Bank or its holding company, reduction as the case may be, as specified in paragraph (i) or payment(ii) of this subsection (b) shall be delivered to the Applicant and shall be conclusive absent manifest error. The Applicant shall pay such Bank or the Issuing Bank, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.
(iv) Failure or delay on the part of any Bank or the Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Bank’s or the Issuing Bank’s right to demand such compensation; provided provided, that the Applicant shall not be required to compensate such a Bank or the Issuing Bank pursuant to this Section 9.1(bsubsection (b) for any increased costs, costs or reductions or payments incurred more than 90 days prior to the date that such Bank or the Issuing Bank, as the case may be, notifies the Applicant of the Change in Law giving rise to such increased costs, costs or reductions or payments and of such Bank’s or the Issuing Bank’s intention to claim compensation therefor; provided provided, further that, if the Change in Law giving rise to such increased costs, costs or reductions or payments is retroactive, then the 90-day period referred to above shall be extended to include the period of retroactive effect thereof. The protection of this Section 9.1(b) shall be available to the Banks regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which has been imposed; provided, however, that if it shall be later determined by any Bank that any amount so paid by the Applicant pursuant to this Section 9.1(b) is in excess of the amount payable under the provisions hereof, such Bank shall refund such excess amount to the Applicant.
(c) If any payment of principal of any Eurodollar Advance is made by the Applicant to or for the account of a Bank other than on the last day of the Interest Period applicable thereto, as a result of a payment or a conversion pursuant to Sections 2.3(d), 2.3(e) or 2.15, as a result of an Event of Default or for any other reason, or by an assignee or the Applicant to a Bank other than on the last day of the Interest Period for such Eurodollar Advance upon an assignment of rights and obligations under this Agreement pursuant to Section 9.7 9.6 as a result of a demand by the Applicant pursuant to Section 9.7(a9.6(b), the Applicant shall, upon demand by such Bank (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Bank any amounts required to compensate such Bank for any additional losses, costs or expenses that it may reasonably incur as a result of such payment or conversion, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Bank to fund or maintain such Eurodollar Advance.
Appears in 3 contracts
Samples: Reimbursement Agreement (South Jersey Industries Inc), Reimbursement Agreement (South Jersey Industries Inc), Reimbursement Agreement (South Jersey Industries Inc)
No Deductions; Increased Costs; Break Funding Payments. (a) Except as otherwise required by law, each payment by the Applicant to the Administrative Agent or any Bank under this Agreement or any other Related Document shall be made without setoff or counterclaim and without withholding for or on account of any present or future taxes (other than overall net income taxes on the recipient imposed by any jurisdiction having control of such recipient) imposed by or within the jurisdiction in which the Applicant is domiciled, any jurisdiction from which the Applicant makes any payment hereunder, or (in each case) any political subdivision or taxing authority thereof or therein. If any such withholding is so required, the Applicant shall make the withholding, pay the amount withheld to the appropriate Governmental Authority before penalties attach thereto or interest accrues thereon and forthwith pay such additional amount as may be necessary to ensure that the net amount actually received by the Administrative Agent, the Issuing Bank or such Bank free and clear of such taxes (including such taxes on such additional amount) is equal to the amount which the Administrative Agent, the Issuing Bank or such Bank would have received had such withholding not been made. If the Administrative Agent, the Issuing Bank or any Bank pays any amount in respect of any such taxes, penalties or interest, the Applicant shall reimburse the Administrative Agent, the Issuing Bank or such Bank, as applicable, for that payment on demand in the currency in which such payment was made. If the Applicant pays any such taxes, penalties or interest, it shall deliver official tax receipts evidencing that payment or certified copies thereof to the Administrative Agent on or before the thirtieth day after payment.
(bi) If the Code or any newly adopted law, treaty, regulation, guideline or directive, or any change Change in any, law, treaty, regulation, guideline or directive or any new or modified interpretation of any of the foregoing by any authority or agency charged with the administration or interpretation thereof or any central bank or other fiscal, monetary or other authority having jurisdiction over any Bank or the transactions contemplated by this Agreement (whether or not having the force of law) Law shall:
(i) limit the deductibility of interest on funds obtained by such Bank to pay any of its liabilities or subject such Bank to any tax, duty, charge, deduction or withholding on or with respect to payments relating to the Bonds, the Letter of Credit or this Agreement, or any amount paid or to be paid by such Bank as the issuer of the Letter of Credit (other than any tax measured by or based upon the overall net income of such Bank imposed by any jurisdiction having control over such Bank);
(ii1) impose, modify, require, make modify or deem applicable to such Bank any reserve requirement, capital requirementreserve, special deposit requirement, insurance assessment or similar requirement against any assets held byof, deposits with or for the account of, or loans, letters of credit or commitments extended by, an office of any Bank (except any such reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank;
(iii2) change impose on any Bank or the basis of taxation of payments due such Issuing Bank under or the London interbank market any other condition affecting this Agreement or the Bonds (other than by a change in taxation of the overall net income of such Bank);
(iv) cause Eurodollar Advances or deem letters of credit to be assets held ABR Advances made by such Bank and/or as deposits on its booksor the Letter of Credit or participation therein; or
(v3) impose upon such Bank subject any other condition with respect Recipient to any amount paid Taxes (other than (A) Indemnified Taxes and (B) Other Connection Taxes on gross or payable to net income, profits or by such Bank revenue (including value-added or with respect to this Agreement similar Taxes)) on its loans, loan principal, letters of credit, commitments, or any of the other Related Documentsobligations, or its deposits, reserves, other liabilities or capital attributable thereto; and the result of any of the foregoing (for purposes of this Section 9.1(b), the “Change in Law”; provided, however, for the purposes of this Agreement, the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act and all requirements, rules, guidelines or directives in connection therewith are deemed to have gone into effect and adopted thirty (30) days after the date of this Agreement) is shall be to increase the cost to such Bank or such other Recipient of making or maintaining any payment Eurodollar Advance or ABR Advance (or of maintaining its obligation to make any such Advance) or to increase the cost to such Bank, the Issuing Bank or such other Recipient of participating in, issuing or maintaining the Letter of Credit, Credit or to reduce the amount of any payment sum received or receivable by such Bank, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) receivable by ), then the Applicant will pay to such Bank, the Issuing Bank or to reduce such other Recipient, as the case may be, such additional amount or amounts as will compensate such Bank, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(ii) If any Bank or the Issuing Bank determines that any Change in Law regarding capital requirements has or would have the effect of reducing the rate of return on such Bank’s or the Issuing Bank’s capital or on the capital of such Bank or to require such Bank to make any payment on or calculated by reference to the gross amount of any sum received by it, in each case by an amount which such Bank in its reasonable judgment deems material, then:
(1) such Bank shall promptly notify the Applicant in writing of such event;
(2) such Bank shall promptly deliver to the Applicant a certificate stating the change which has occurred Bank’s or the reserve requirements Issuing Bank’s holding company, if any, as a consequence of this Agreement or other costs the Loans made by, or conditions participations in the Letter of Credit held by, such Bank, or the Letter of Credit issued by the Issuing Bank, to a level below that which have been imposed on such Bank or the request, direction Issuing Bank or requirement with which it has complied, together with the date thereof, the amount of such increased cost, reduction or payment and a reasonably detailed description of the way in which such amount has been calculated, and such Bank’s determination or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Bank’s or the Issuing Bank’s policies and the policies of such amountsBank’s or the Issuing Bank’s holding company with respect to capital adequacy), absent fraud or manifest error, shall be conclusive; and
(3) the Applicant shall pay to such Bank, then from time to time as specified by the Applicant will pay to such Bank or the Issuing Bank, as the case may be, such an additional amount or amounts as will compensate such Bank or the Issuing Bank or such Bank’s or the Issuing Bank’s holding company for any such additional costreduction suffered.
(iii) A certificate of a Bank or the Issuing Bank setting forth the amount or amounts necessary to compensate such Bank or the Issuing Bank or its holding company, reduction as the case may be, as specified in paragraph (i) or payment(ii) of this subsection (b) shall be delivered to the Applicant and shall be conclusive absent manifest error. The Applicant shall pay such Bank or the Issuing Bank, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.
(iv) Failure or delay on the part of any Bank or the Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Bank’s or the Issuing Bank’s right to demand such compensation; provided provided, that the Applicant shall not be required to compensate such a Bank or the Issuing Bank pursuant to this Section 9.1(bsubsection (b) for any increased costs, costs or reductions or payments incurred more than 90 days prior to the date that such Bank or the Issuing Bank, as the case may be, notifies the Applicant of the Change in Law giving rise to such increased costs, costs or reductions or payments and of such Bank’s or the Issuing Bank’s intention to claim compensation therefor; provided provided, further that, if the Change in Law giving rise to such increased costs, costs or reductions or payments is retroactive, then the 90-day period referred to above shall be extended to include the period of retroactive effect thereof. The protection of this Section 9.1(b) shall be available to the Banks regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which has been imposed; provided, however, that if it shall be later determined by any Bank that any amount so paid by the Applicant pursuant to this Section 9.1(b) is in excess of the amount payable under the provisions hereof, such Bank shall refund such excess amount to the Applicant.
(c) If any payment of principal of any Eurodollar Advance is made by the Applicant to or for the account of a Bank other than on the last day of the Interest Period applicable thereto, as a result of a payment or a conversion pursuant to Sections 2.3(d), 2.3(e) or 2.15, as a result of an Event of Default or for any other reason, or by an assignee or the Applicant to a Bank other than on the last day of the Interest Period for such Eurodollar Advance upon an assignment of rights and obligations under this Agreement pursuant to Section 9.7 as a result of a demand by the Applicant pursuant to Section 9.7(a), the Applicant shall, upon demand by such Bank (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Bank any amounts required to compensate such Bank for any additional losses, costs or expenses that it may reasonably incur as a result of such payment or conversion, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Bank to fund or maintain such Eurodollar Advance.
Appears in 1 contract
