Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, or (iii) shall impose on any Lender or the London Interbank Market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Loan or Fixed Rate Loan or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the Borrower shall pay such additional amount or amounts as will compensate such Lender for such increase or reduction to such Lender upon demand by such Lender. (b) If, after the date of this Agreement, any Lender shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of 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 capital or on the capital of the Lender's holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its holding company) could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or the policies of its holding company, as the case may be, with respect to capital adequacy) by an amount deemed by such Lender to be material, then, from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such reduction upon demand by such Lender. (c) A certificate of a Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 10 Business Days after its receipt of the same. (d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposed. (e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender. (f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 2 contracts
Samples: Five Year Competitive Advance and Revolving Credit Agreement (Cendant Corp), Credit Agreement (HFS Inc)
Reserve Requirements; Change in Circumstances. (a) It is understood that the cost to each Lender of making or maintaining any of the Eurodollar, Eurocurrency or Pounds Sterling Loans may fluctuate as a result of the applicability of reserve requirements imposed by the Board at the ratios provided for in Regulation D on the Closing Date. The Borrowers agree to pay to such Lender from time to time such amounts as shall be necessary to compensate such Lender for the portion of the cost of making or maintaining Eurodollar, Eurocurrency or Pounds Sterling Loans resulting from any increase in such reserve requirements provided for in Regulation D (or any successor regulation or ruling issued in respect thereof) from those as in effect on the Closing Date, it being understood that the rates of interest applicable to such Loans have been determined on the assumption that no such reserve requirements exist or will exist and that such rates do not reflect costs imposed on the Lenders in connection with such reserve requirements.
(b) Notwithstanding any other provision herein, if after the date of this Agreement any change Change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect Recipient to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder Taxes (other than (xA) taxes Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Other Connection Taxes that are imposed on the overall or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes) on its loans, loan principal, letters of such Lender by the jurisdiction in which such Lender has its principal office credit, commitments or other obligations, or its applicable Lending Office deposits, reserves other liabilities or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement)capital attributable thereto, (ii) shall impose, modify or deem applicable any reserve, special deposit deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender, Lender (other than any amounts described in paragraph (a) above) or (iii) shall impose on any Lender or any Issuing Bank or the London Interbank Market interbank market any other condition condition, cost or expense (other than Taxes) affecting this Agreement or any LIBOR Loan Eurodollar, Eurocurrency or Fixed Rate Loan Pounds Sterling Loans made by such Lender, Lender or any Letter of Credit or participation therein; and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making making, converting to, continuing or maintaining any LIBOR Eurodollar, Eurocurrency or Pounds Sterling Loan or Fixed Rate Loan of maintaining its obligation to make any such Loan, or to increase the cost to such Lender or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit) or to reduce the amount of any sum received or receivable by such Lender or such other Recipient hereunder (whether of principal, interest or otherwise) in respect thereof thereof, by an amount deemed in good faith by such Lender or such other Recipient in its sole discretion to be material, then the Borrower Borrowers shall pay as required in Section 5.8(d) such additional amount or amounts as will compensate such Lender or such other Recipient for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(bc) If, after the date of this Agreement, If any Lender or any Issuing Bank shall have determined that any Change in good faith that the adoption after the date hereof Law affecting such Lender or such Issuing Bank or any lending office of any applicable lawsuch Lender or such Lender’s or such Issuing Bank’s holding company, ruleif any, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of 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 agencyliquidity requirements, has or would have the effect of reducing the rate of return on such Lender's ’s or such Issuing Bank’s capital or on the capital of the such Lender's ’s or such Issuing Bank’s holding company, if any, as a consequence of its obligations hereunder this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swing Line Loans held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender (or its such Issuing Bank or such Lender’s or such Issuing Bank’s holding company) company could have achieved but for such applicability, adoption, change or compliance Change in Law (taking into consideration such Lender's ’s or such Issuing Bank’s policies or and the policies of its such Lender’s or such Issuing Bank’s holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or such Issuing Bank in its sole discretion to be material, then, from time to time, then the Borrower Borrowers shall pay as required to the Administrative Agent for the account of Section 5.8(d) to such Lender or such Issuing Bank such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction upon demand by such Lendersuffered.
(cd) A certificate of a Lender or an Issuing Bank setting forth in reasonable detail calculations (itogether with the basis and assumptions therefor) to establish such amount or amounts as shall be necessary to compensate without duplication such Lender as specified in paragraph (aor participating banks or other entities pursuant to Section 13.3 subject to the limitations set forth therein) or (b) abovesuch Issuing Bank or its holding company, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (iunder Section 5.8(a), Section 5.8(b) or Section 5.8(c) shall be delivered to the Borrower Agent which shall promptly deliver the same to the Company and such certificate shall be conclusive absent manifest errorrebuttably presumptive evidence of the amount or amounts which such Lender or such Issuing Bank is entitled to receive. The Borrower Borrowers shall pay the Administrative Agent for the account of such Lender or such Issuing Bank the amount shown as due on any such certificate within 10 Business Days ten (10) days after its receipt of the same.
(de) Failure Any demand for compensation pursuant to this Section 5.8 must be made on or before one (1) year after the part of any Lender or Issuing Bank incurs the expense, cost or economic loss referred to demand compensation for any increased costs or reduction in amounts received such Lender or receivable or reduction in return on capital with respect Issuing Bank shall be deemed to any Interest Period shall not constitute a waiver of such Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect have waived the right to such Interest Period or any other Interest Periodcompensation. The protection of this Section 2.14 5.8 shall be available to each Lender and Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the any law, regulation or other condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it give rise to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable demand by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such LenderIssuing Bank for compensation.
(f) In the event Nothing in this Section 5.8 shall entitle any Lender shall have delivered to the Borrower receive interest at a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any rate per annum in excess of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9Highest Lawful Rate.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Group 1 Automotive Inc), Revolving Credit Agreement (Group 1 Automotive Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinExcept with respect to Indemnified Taxes and Other Taxes, which shall be governed solely and exclusively by Section 2.23, if after the date of this Agreement Closing Date any change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, or (iiiii) shall impose on any Lender or the London Interbank Market market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Competitive Loan made by such Lender, and the result of any of the foregoing shall be to increase the cost (other than the amount of Taxes, if any) to such Lender of making or maintaining any LIBOR Loan or Fixed Rate Competitive Loan or to reduce the amount (other than a reduction resulting from an increase in Taxes, if any) of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the Borrower or the relevant Subsidiary Borrower shall pay such additional amount or amounts as will compensate such Lender for such increase or reduction to such Lender upon demand by such Lender.
(b) IfExcept with respect to Indemnified Taxes and Other Taxes, which shall be governed solely and exclusively by Section 2.23, if, after the date of this AgreementClosing Date, any Lender shall have determined in good faith that the adoption after the date hereof Closing Date of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of 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 ’s capital or on the capital of the Lender's ’s holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its holding company) could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's ’s policies or the policies of its holding company, as the case may be, with respect to capital adequacy) by an amount deemed by such Lender to be material, then, from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such reduction upon demand by such Lender.
(c) A certificate of a Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower or the relevant Subsidiary Borrower and shall be conclusive absent manifest error. The Borrower or the relevant Subsidiary Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 10 Business Days after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's ’s rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection of this Section 2.14 2.17 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.152.17, Section 2.162.18, Section 2.21 2.23 or Section 2.24(g) 2.26 or (ii) would require the Borrower or any Subsidiary Borrower to pay an increased amount under this Section 2.152.17, Section 2.162.18, Section 2.21 2.23 or Section 2.24(g)2.26, it will use reasonable efforts to notify the Borrower and such Subsidiary Borrower of such event or condition and, to the extent not inconsistent with such Lender's ’s internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.152.17, Section 2.162.18, Section 2.21 2.23 or Section 2.24(g) 2.26 would be materially reduced or the taxes Taxes payable under Section 2.23, or other amounts otherwise payable under this Section 2.152.17, Section 2.16, Section 2.21 2.18 or Section 2.24(g) 2.26 would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender. For the avoidance of doubt, nothing in this Section shall affect or postpone any of the obligations of the Borrower or any Subsidiary Borrower or the rights of any Lender pursuant to Section 2.23.
(f) In the event any Lender shall have delivered to the Borrower or any Subsidiary Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.162.18, that amounts are due or if the Borrower or such Subsidiary Borrower is required to such pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to paragraph (c) hereof Section 2.16 or that any of the events designated in paragraph (e) hereof have occurredSection 2.23, the Borrower may (but subject in any such case to the payments required by Section 2.172.18), provided that there shall exist no Default or Event of Default, upon at least five Business Days' ’ prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and Loans, any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 910.3. Such notice shall specify an effective date for such assignment and at the time thereof, the Borrower and any relevant Subsidiary Borrower shall pay all accrued interest, accrued Facility Fees and all other amounts (including without limitation all amounts payable under this Section) owing hereunder to such Lender as at such effective date for such assignment.
Appears in 2 contracts
Samples: Credit Agreement (Wyndham Worldwide Corp), Credit Agreement (Wyndham Worldwide Corp)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Amended Agreement, if after the date of this Amended Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or the Issuing Bank of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than (x) changes in respect of taxes imposed on the overall net income of such Lender or the Issuing Bank by the jurisdiction in which such Lender or the Issuing Bank has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any Lender, or (iii) shall impose on by any Lender or the London Interbank Market Issuing Bank (except any such reserve requirement that is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or the Issuing Bank or the applicable interbank market any other condition affecting this Amended Agreement or any LIBOR Loan or Fixed Rate Loan Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or the Issuing Bank of making or maintaining any LIBOR Loan or Fixed Rate Loan increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or the Issuing Bank to be material, then the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or the Issuing Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the date hereof in any such law, rule, regulation, agreement or any change guideline or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority (including the National Association of Insurance Commissioners) charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or the Issuing Bank or any Lender's or the Issuing Bank's holding company 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, Authority has or would have the effect of reducing the rate of return on such Lender's or the Issuing Bank's capital or on the capital of such Lender's or the LenderIssuing Bank's holding company, if any, as a consequence of its obligations hereunder this Amended Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender (or its the Issuing Bank or such Lender's or the Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or the Issuing Bank's policies or and the policies of its such Lender's or the Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or the Issuing Bank to be material, then, from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or the Issuing Bank setting forth in reasonable detail (i) such the circumstances requiring the payment of compensation, the calculations with respect thereto, and the amount or amounts as shall be necessary to compensate such Lender or the Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender or the Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights or the Issuing Bank's right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Periodcompensation. The protection of this Section 2.14 shall be available to each Lender and the Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 2 contracts
Samples: Credit Agreement (United Surgical Partners International Inc), Credit Agreement (United Surgical Partners International Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinherein (but subject to paragraph (d) below and Section 2.20), if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or the Fronting Bank, as applicable, of the principal of or interest on any LIBOR Loan, NIBOR Loan or Fixed Rate Loan made by such Lender or any other Letter of Credit or participation therein or any fees or other amounts payable hereunder (other than changes in respect of Taxes referred to in clause (xa) taxes imposed on or (b) of the overall net income definition of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office "Excluded Taxes") or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any Lender, by such Lender or (iii) Fronting Bank or shall impose on any Lender such Lender, the Fronting Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan Loans, NIBOR Loans or Fixed Rate Loan Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR such Loan or Fixed Rate Loan to increase the cost to such Lender or the Fronting Bank of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or the Fronting Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the Borrower shall will pay to such Lender or the Fronting Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or the Fronting Bank for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) IfSubject to Section 2.20, after the date of this Agreement, if any Lender or the Fronting Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, after the date hereof in any of the foregoing or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender or the Fronting Bank (or any Lending Office lending office of such Lender or the Fronting Bank) or any Lender) 's or the Fronting Bank's holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of made or promulgated after the date hereof by 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 the Fronting Bank's capital or on the capital of such Lender's or the LenderFronting Bank's holding company, if any, as a consequence of its obligations hereunder under this Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the Fronting Bank, pursuant hereto to a level below that which such Lender (or its the Fronting Bank or such Lender's or the Fronting Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or the policies of its holding company, as the case may be, Fronting Bank's guidelines with respect to capital adequacy) by an amount deemed by such Lender or the Fronting Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or the Fronting Bank such additional amount or amounts as will compensate such Lender or the Fronting Bank or such Lender's or the Fronting Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a each Lender or the Fronting Bank setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender or the Fronting Bank (or its participating banks or other entities pursuant to Section 10.07) as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Except as provided in paragraph (d) below, the Borrower shall pay each Lender or the Administrative Agent for the account of such Lender Fronting Bank the amount shown as due on any such certificate delivered by such Lender or the Fronting Bank within 10 Business Days 30 days after its receipt of the same. Each Lender or the Fronting Bank shall submit such a certificate no more often than monthly; provided, however, that certificates with respect to amounts due with respect to identifiable Loans may be submitted at the ends of such Loans' Interest Periods.
(d) Failure on the part of any Lender or the Fronting Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's or the Fronting Bank's rights with respect to any period to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Periodperiod; provided, however, that neither any Lender nor the Fronting Bank shall be entitled to compensation under this Section 2.14 for any costs incurred or reductions suffered more than 90 days prior to the date on which it shall have requested compensation therefor; provided further, that if the change in law or regulation or in the interpretation or administration thereof that shall give rise to any such costs or reductions shall be retroactive, then the 90-day period referred to above shall be extended to include the period of retroactive effect thereof. The protection Notwithstanding any other provision of this Section 2.14 2.14, neither any Lender nor the Fronting Bank shall demand compensation for any increased cost or reduction referred to above if it shall not at the time be available the general policy or practice of such Lender or the Fronting Bank to each demand such compensation in similar circumstances under comparable provisions of other credit agreements, if any. If any Lender regardless of or the Fronting Bank shall receive as a refund any possible contention of invalidity moneys from any source that it has listed on the certificate provided pursuant to (c) above as an increased cost, to the extent that the Borrower has previously paid such increased cost to such Lender or inapplicability of the lawFronting Bank, regulation such Lender or condition which the Fronting Bank shall have been imposedpromptly forward such refund to the Borrower without interest.
(e) Each Notwithstanding the foregoing provisions of this Section, no Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit shall demand compensation pursuant to this Section 2.15, Section 2.16, Section 2.21 in respect of any Competitive Loan for any increased cost or Section 2.24(g) reduction referred to above if the circumstance that would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by entitle it to such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender compensation shall have delivered been publicly announced prior to submission of the Borrower a notice that LIBOR Loans are no longer available from such Lender Competitive Bid pursuant to Section 2.16, that amounts are due to which such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9Loan was made.
Appears in 2 contracts
Samples: Credit Agreement (Equistar Funding Corp), Credit Agreement (Lyondell Chemical Co)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change Change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of or credit extended by any Lender or any Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate), (ii) subject any Lender or any Issuing Bank to any Tax of any kind whatsoever with respect to this Agreement, or any Loan made by it, to such Lender or such Issuing Bank in respect thereof (except for Indemnified Taxes or Other Taxes covered by section 2.20 and the imposition of, or credit extended byany change in the rate of, any LenderExcluded Tax payable by such Lender or such Issuing Bank), or (iii) shall impose on any such Lender or such Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or such Issuing Bank of making or maintaining any LIBOR Eurodollar Loan (or Fixed Rate Loan in the case of clause (ii) above, any loan) or increase the cost to any Lender or any Issuing Bank of issuing or main- taining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or such Issuing Bank to be material, then the Borrower shall will pay to such Lender or such Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or such Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or any Issuing Bank shall have determined that any Change in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of such Lender) with any request or directive Law 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 ’s or such Issuing Bank’s capital or on the capital of the such Lender's ’s or such Issuing Bank’s holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by such Issuing Bank pursuant hereto to a level below that which such Lender (or its such Issuing Bank or such Lender’s or such Issuing Bank’s holding company) company could have achieved but for such applicability, adoption, change or compliance Change in Law (taking into consideration such Lender's ’s or such Issuing Bank’s policies or and the policies of its such Lender’s or such Issuing Bank’s holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or such Issuing Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or an Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or such Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender or such Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or any Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights ’s or such Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be under any obligation to compensate any Lender or any Issuing Bank under paragraph (a) or (b) above with respect to increased costs or reductions with respect to any period prior to the date that is 120 days prior to such request if such Lender or such Issuing Bank knew or could reasonably have been expected to know of the circumstances giving rise to such increased costs or reductions and of the fact that such circumstances would result in a claim for increased compensation for by reason of such increased costs or reductions; provided further that the foregoing limitation shall not apply to any increased costs or reduction reductions arising out of the retroactive application of any Change in amounts received or receivable or reduction in return on capital with respect to Law within such Interest Period or any other Interest Period120-day period. The protection of this Section 2.14 shall be available to each Lender and each Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation or condition which Change in Law that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 2 contracts
Samples: Credit Agreement (Calpine Corp), Credit Agreement (Calpine Corp)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or the Letter of Credit Issuer in respect of any Letter of Credit or of the principal of or interest on any LIBOR Loan or Fixed Rate Eurodollar Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than changes in respect of (xi) taxes the rate of tax imposed on the overall net income of such Lender by or the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure Letter of any Lender to comply with any certification, information, documentation or other reporting requirement), Credit Issuer and (ii) any Covered Taxes described in Section 2.17), or shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, or deposits with or for the account of, of or credit extended byby or, in the case of the Letters of Credit, participated in by such Lender (except any Lender, such reserve requirement which is reflected in the Eurodollar Rate) or (iii) the Letter of Credit Issuer or shall impose on any such Lender or the London Interbank Market Letter of Credit Issuer or the interbank Eurodollar market any other condition affecting this Agreement Agreement, any Letter of Credit (or any LIBOR Loan participation with respect thereto), the Letter of Credit Exposure, the Letter of Credit Commitment or Fixed Rate Loan made by any Eurodollar Loans of such LenderLender or the Letter of Credit Issuer, and the result of any of the foregoing shall be to increase the cost to such Lender or the Letter of Credit Issuer of making or maintaining its Letter of Credit Exposure, its Letter of Credit Commitment or any LIBOR Eurodollar Loan or Fixed Rate Loan (or, in the case of the Letter of Credit Issuer, of making any payment under any Letter of Credit) or to reduce the amount of any sum received or receivable by such Lender or the Letter of Credit Issuer hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or the Letter of Credit Issuer to be material, then from time to time the Borrower shall Borrowers will pay to such Lender or the Letter of Credit Issuer upon demand such additional amount or amounts as will compensate such Lender or the Letter of Credit Issuer for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or the Letter of Credit Issuer shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, after the date hereof in any of the foregoing or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or the Letter of Credit Issuer or any Lender’s or the Letter of Credit Issuer’s holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of made or issued after the date hereof by any such Governmental Authorityauthority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's ’s or the Letter of Credit Issuer’s capital or on the capital of such Lender’s or the Lender's Letter of Credit Issuer’s holding company, if any, as a consequence of this Agreement or its obligations hereunder pursuant hereto to a level below that which such Lender (or its the Letter of Credit Issuer or such Lender’s or the Letter of Credit Issuer’s holding company) could company would have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's ’s or the Letter of Credit Issuer’s policies or and the policies of its such Lender’s or the Letter of Credit Issuer’s holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or the Letter of Credit Issuer to be material, then, then from time to time, time the Borrower Borrowers shall pay to the Administrative Agent for the account of such Lender or the Letter of Credit Issuer upon demand such additional amount or amounts as will compensate such Lender or the Letter of Credit Issuer or such Lender’s or the Letter of Credit Issuer’s holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a each Lender or the Letter of Credit Issuer setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender or the Letter of Credit Issuer or its holding company as specified in paragraph paragraphs (a) or and (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower Representative through the Administrative Agent and shall be conclusive absent manifest error. The Borrower Borrowers shall pay each Lender or the Administrative Agent for the account Letter of such Lender Credit Issuer the amount shown as due on any such certificate delivered by it within 10 Business Days ten (10) days after its receipt of the same.
(d) Promptly after any Lender or the Letter of Credit Issuer has determined, in its sole judgment, that it will make a request for increased compensation pursuant to this Section 2.11, such Lender or the Letter of Credit Issuer will notify the Borrower Representative in writing thereof. Failure on the part of any Lender or the Letter of Credit Issuer so to notify the Borrower Representative or to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such Lender's rights ’s or the Letter of Credit Issuer’s right to demand compensation with respect to such period or any other period; provided that the Borrowers shall not be under any obligation to compensate any Lender or the Letter of Credit Issuer under paragraph (a) or (b) above with respect to increased costs or reductions with respect to any period prior to the date that is six months prior to such request if such Lender or the Letter of Credit Issuer knew or could reasonably have been expected to be aware of the circumstances giving rise to such increased costs or reductions and of the fact that such circumstances would in fact result in a claim for increased compensation by reason of such increased costs or reductions; provided further that the foregoing limitation shall not apply to any increased costs or reduction in amounts received reductions arising out of the retroactive application of any law, regulation, rule, guideline or receivable or reduction in return on capital with respect to directive as aforesaid within such Interest Period or any other Interest Periodsix month period. The protection of this Section 2.14 2.11 shall be available to each Lender and the Letter of Credit Issuer regardless of any possible contention of as to the invalidity or inapplicability of the law, regulation rule, regulation, guideline or other change or condition which shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of In the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters Letter of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered Issuer delivers a written notice to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender Representative pursuant to paragraph (c) hereof or that above, (ii) any of the events designated in paragraph (e) hereof have occurred, Revolving Lender delivers a notice to the Borrower may (but subject in any such case Representative pursuant to the payments required by Section 2.172.12(a), provided that there shall exist no Default or Event of Default(iii) any Lender makes written demand for indemnification upon the Borrower Representative for payment pursuant to Section 2.17(c), upon in each case the Borrowers may require, at least five Business Days' prior written or telecopier notice the Borrowers’ expense and subject to Section 2.13, such Lender or the Letter of Credit Issuer that delivers such notice or makes such demand to assign, at par plus accrued interest and fees, without recourse (in accordance with Section 8.1) all its interests, rights and obligations hereunder (including, in the case of a Lender, all of its Commitments and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify Loans at the time owing to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans it and any participations in Letters of Credit from held by it and its obligations to acquire such participations) to a financial institution specified by the Lender providing Borrowers; provided that (w) such notice assignment shall not conflict with or violate any law, rule or regulation or order of any court or other Governmental Authority, (x) the Borrowers shall have received the written consent of the Administrative Agent (which consent shall not be unreasonably withheld) and such Lender shall thereupon assign its in the event of an assignment of a Revolving Credit Commitment, any Loans owing the Letter of Credit Issuer to such assignment, (y) the Borrowers shall have paid to the assigning Lender or the Letter of Credit Issuer all monies accrued and any participations owing hereunder to it (including pursuant to this Section 2.11) and (z) in the case of a required assignment by the Letter of Credit Issuer, all outstanding Letters of Credit issued by the Letter of Credit Issuer shall be canceled and returned to the Notes held by such Lender to such replacement lending institution pursuant to Letter of Credit Issuer or cash collateralized in the manner described in Section 92.18(c) hereof.
Appears in 2 contracts
Samples: Credit Agreement (Centerplate, Inc.), Credit Agreement (Centerplate, Inc.)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) except for changes in respect of taxes imposed on the overall net income of such Lender or its lending office imposed by the jurisdiction in which such Lender has its Lender's principal executive office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which lending office is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmentlocated), or other governmental charge that would not have been imposed but for shall result in the failure imposition, modification or applicability of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, by any Lender, or (iii) shall impose result in the imposition on any Lender or the London Interbank Market interbank market of any other condition affecting this Agreement Agreement, such Lender's Commitment or any LIBOR Eurodollar Loan or Fixed Rate Loan made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the applicable Borrower shall or, if the foregoing circumstances do not relate to a particular Borrowing, the Borrowers shall, upon receipt of the notice and certificate provided for in Section 2.12(c), promptly pay to such Lender such additional amount or amounts as will compensate such Lender for such increase additional costs incurred or reduction suffered. Notwithstanding the foregoing, no Lender shall be entitled to request compensation under this paragraph with respect to any Competitive Loan if the change giving rise to such request was applicable to such Lender upon demand by at the time of submission of the Competitive Bid pursuant to which such LenderCompetitive Loan was made.
(b) If, after the date of this Agreement, If any Lender shall have determined in good faith that the adoption of any law, rule, regulation or guideline arising out of the July 1988 report of the Basle Committee on Banking Regulations and Supervisory Practices entitled "International Convergence of Capital Measurement and Capital Standards," or the adoption after the date hereof of any applicable other law, rule, regulation or guideline regarding capital adequacy, or any change therein, in any of the foregoing or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or any Lender's holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authorityauthority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's capital or on the capital of the such Lender's holding company, if any, as a consequence of its obligations hereunder this Agreement, such Lender's Commitment or the Loans made by such Lender pursuant hereto to a level below that which such Lender (or its such Lender's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or and the policies of its such Lender's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender to be material, then, then from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender time such additional amount or amounts as will compensate such Lender for any such reduction upon demand suffered will be paid by the Borrowers to such Lender. It is acknowledged that this Agreement is being entered into by the Lenders on the understanding that the Lenders will not be required to maintain capital against their Commitments under currently applicable laws, regulations and regulatory guidelines. In the event the Lenders shall otherwise determine that such understanding is incorrect, it is agreed that the Lenders will be entitled to make claims under this paragraph (b) based upon market requirements prevailing on the date hereof for commitments under comparable credit facilities against which capital is required to be maintained.
(c) A certificate of a each Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender or its holding company as specified in paragraph (a) or (b) above, as the case may be, and (ii) containing an explanation in reasonable detail of the calculation of manner in which such amount or amounts referred to in the preceding clause (i)shall have been determined, shall be delivered to the applicable Borrower or the Borrowers, as the case may be, and shall be conclusive absent manifest error. The Borrower Borrowers shall pay the Administrative Agent for the account of such each Lender the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same. Each Lender shall give prompt notice to the applicable Borrower of any event of which it has knowledge, occurring after the date hereof, that it has determined will require compensation by such Borrower pursuant to this Section; provided, however, that failure by such Lender to give such notice shall not constitute a waiver of such Lender's right to demand compensation hereunder.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such Lender's rights right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Period. The protection of period; provided, however, that no Lender shall be entitled to compensation under this Section 2.14 shall be available to each Lender regardless of 2.12 for any possible contention of invalidity costs incurred or inapplicability of the law, regulation or condition which shall have been imposed.reductions suffered with
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use designate a different lending office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans judgment of such Lender, or, if applicable be disadvantageous to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 2 contracts
Samples: 364 Day Competitive Advance and Revolving Credit Facility Agreement (Texas Utilities Co /Tx/), 364 Day Competitive Advance and Revolving Credit Facility Agreement (Tu Acquisitions PLC)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) except for changes in respect of taxes imposed on the overall net income of such Lender or its lending office imposed by the jurisdiction in which such Lender has its Lender's principal executive office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which lending office is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmentlocated), or other governmental charge that would not have been imposed but for shall result in the failure imposition, modification or applicability of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, by any Lender, or (iii) shall impose result in the imposition on any Lender or the London Interbank Market interbank market of any other condition affecting this Agreement Agreement, such Lender's Commitment or any LIBOR Eurodollar Loan or Fixed Rate Loan made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the applicable Borrower shall or, if the foregoing circumstances do not relate to a particular Borrowing, the Borrowers shall, upon receipt of the notice and certificate provided for in Section 2.12(c), promptly pay to such Lender such additional amount or amounts as will compensate such Lender for such increase additional costs incurred or reduction suffered. Notwithstanding the foregoing, no Lender shall be entitled to request compensation under this paragraph with respect to any Competitive Loan if the change giving rise to such request was applicable to such Lender upon demand by at the time of submission of the Competitive Bid pursuant to which such LenderCompetitive Loan was made.
(b) If, after the date of this Agreement, If any Lender shall have determined in good faith that the adoption of any law, rule, regulation or guideline arising out of the July 1988 report of the Basle Committee on Banking Regulations and Supervisory Practices entitled "International Convergence of Capital Measurement and Capital Standards," or the adoption after the date hereof of any applicable other law, rule, regulation or guideline regarding capital adequacy, or any change therein, in any of the foregoing or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or any Lender's holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authorityauthority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's capital or on the capital of the such Lender's holding company, if any, as a consequence of its obligations hereunder this Agreement, such Lender's Commitment or the Loans made by such Lender pursuant hereto to a level below that which such Lender (or its such Lender's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or and the policies of its such Lender's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender to be material, then, then from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender time such additional amount or amounts as will compensate such Lender for any such reduction upon demand suffered will be paid by the Borrowers to such Lender. It is acknowledged that this Agreement is being entered into by the Lenders on the understanding that the Lenders will not be required to maintain capital against their Commitments under currently applicable laws, regulations and regulatory guidelines. In the event the Lenders shall otherwise determine that such understanding is incorrect, it is agreed that the Lenders will be entitled to make claims under this paragraph (b) based upon market requirements prevailing on the date hereof for commitments under comparable credit facilities against which capital is required to be maintained.
(c) A certificate of a each Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender or its holding company as specified in paragraph (a) or (b) above, as the case may be, and (ii) containing an explanation in reasonable detail of the calculation of manner in which such amount or amounts referred to in the preceding clause (i)shall have been determined, shall be delivered to the applicable Borrower or the Borrowers, as the case may be, and shall be conclusive absent manifest error. The Borrower Borrowers shall pay the Administrative Agent for the account of such each Lender the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same. Each Lender shall give prompt notice to the applicable Borrower of any event of which it has knowledge, occurring after the date hereof, that it has determined will require compensation by such Borrower pursuant to this Section; provided, however, that failure by such Lender to give such notice shall not constitute a waiver of such Lender's right to demand compensation hereunder.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such Lender's rights right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Periodperiod; provided, however, that no Lender shall be entitled to compensation under this Section 2.12 for any costs incurred or reductions suffered with respect to any date unless it shall have notified the applicable Borrower that it will demand compensation for such costs or reductions under paragraph (c) above not more than 90 days after the later of (i) such date and (ii) the date on which it shall have become aware of such costs or reductions. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, guideline or other change or condition which shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use designate a different lending office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans judgment of such Lender, or, if applicable be disadvantageous to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 2 contracts
Samples: 364 Day Amended and Restated Competitive Advance and Revolving Credit Facility Agreement (Texas Utilities Electric Co), 364 Day Second Amended and Restated Competitive Advance and Revolving Credit Facility Agreement (Txu Electric Co)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinherein (but subject to paragraph (d) below and Section 2.21), if after the date of this Agreement any change in Applicable Law applicable ---- law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or any Fronting Bank, as applicable, of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other Letter of Credit or participation therein or any fees or other amounts payable hereunder (other than changes in respect of Taxes referred to in clause (xa) taxes imposed on or (b) of the overall net income definition of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office "Excluded Taxes") or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any Lender, by such Lender or (iii) Fronting Bank or shall impose on any Lender such Lender, such Fronting Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan Loans or Fixed Rate Loan Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR such Loan or Fixed Rate Loan to increase the cost to such Lender or such Fronting Bank of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or such Fronting Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the Borrower shall will pay to such Lender or such Fronting Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or such Fronting Bank for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) IfSubject to Section 2.21, after the date of this Agreement, if any Lender or any Fronting Bank shall ---- have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, after the date hereof in any of the foregoing or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender or any Fronting Bank (or any Lending Office lending office of such Lender or Fronting Bank) or any Lender) 's or any Fronting Bank's holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of made or promulgated after the date hereof by 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 Fronting Bank's capital or on the capital of the such Lender's or such Fronting Bank's holding company, if any, as a consequence of its obligations hereunder under this Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Fronting Bank, pursuant hereto to a level below that which such Lender (or its such Fronting Bank or such Lender's or such Fronting Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or the policies of its holding company, as the case may be, such Fronting Bank's guidelines with respect to capital adequacy) by an amount deemed by such Lender or such Fronting Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or such Fronting Bank such additional amount or amounts as will compensate such Lender or such Fronting Bank or such Lender's or such Fronting Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a each Lender or any Fronting Bank setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender or Fronting Bank (or its participating banks or other entities pursuant to Section 9.07) as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be ---- delivered to the Borrower and shall be conclusive absent manifest error. The Except as provided in paragraph (d) below, the Borrower shall pay the Administrative Agent for the account of such each Lender or Fronting Bank the amount shown as due on any such certificate delivered by such Lender or Fronting Bank within 10 Business Days 30 days after its receipt of the same. Each Lender or Fronting Bank shall submit such a certificate no more often than monthly; provided, however, that certificates with respect to amounts due with respect to identifiable Loans may be submitted at the ends of such Loans' Interest Periods.
(d) Failure on the part of any Lender or Fronting Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's or Fronting Bank's rights with respect to any period to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Periodperiod; provided, however, that neither any Lender nor any Fronting Bank shall be entitled to compensation under this Section 2.15 for any costs incurred ---- or reductions suffered more than 90 days prior to the date on which it shall have requested compensation therefor; provided further, that if the change in law or regulation or in the interpretation or administration thereof that shall give rise to any such costs or reductions shall be retroactive, then the 90-day period referred to above shall be extended to include the period of retroactive effect thereof. The protection Notwithstanding any other provision of this Section 2.14 2.15, neither any Lender nor any Fronting Bank shall demand compensation for any increased cost or reduction referred to above if it shall not at the time be available the general policy or practice of such Lender or such Fronting Bank to each demand such compensation in similar circumstances under comparable provisions of other credit agreements, if any. If any Lender regardless of or any possible contention of invalidity Fronting Bank shall receive as a refund any moneys from any source that it has listed on the certificate provided pursuant to (c) above as an increased cost, to the extent that the Borrower has previously paid such increased cost to such Lender or inapplicability of such Fronting Bank, such Lender or Fronting Bank shall promptly forward such refund to the law, regulation or condition which shall have been imposedBorrower without interest.
(e) Each Notwithstanding the foregoing provisions of this Section, no Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit shall demand compensation pursuant to this Section 2.15, Section 2.16, Section 2.21 in respect of any Competitive Loan for any increased cost or Section 2.24(g) reduction referred to above if the circumstance that would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by entitle it to such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender compensation shall have delivered been publicly announced prior to submission of the Borrower a notice that LIBOR Loans are no longer available from such Lender Competitive Bid pursuant to Section 2.16, that amounts are due to which such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9Loan was made.
Appears in 2 contracts
Samples: Credit Agreement (Equistar Chemicals Lp), Credit Agreement (Lyondell Chemical Co)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, by any Lender, Lender or (iii) shall impose on any such Lender or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan Eurodollar Loans or Fixed Rate Loan Loans made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan Loan, or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the Borrower shall will pay to such Lender upon demand such additional amount or amounts as will compensate such Lender for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the date hereof in any such law, rule, regulation, agreement or any change guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or any Lender's holding company 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, Authority has or would have the effect of reducing the rate of return on such Lender's capital or on the capital of the such Lender's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made by such Lender pursuant hereto to a level below that which such Lender (or its such Lender's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or and the policies of its such Lender's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender or such Lender's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or its holding company (including the calculation thereof) as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Periodcompensation. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed. Notwithstanding any other provision of this Section, no Lender shall be entitled to demand compensation hereunder in respect of any Competitive Loan if it shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or circumstance giving rise to such demand at the existence of a condition that (i) would cause time it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require submitted the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit Competitive Bid pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by which such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such LenderLoan was made.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 2 contracts
Samples: Credit Agreement (Raytheon Co), Credit Agreement (Raytheon Co)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or the Issuing Bank of the principal of or interest on any LIBOR Loan or Fixed Rate Eurodollar Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than (x) changes in respect of taxes imposed on the overall net income of such Lender or the Issuing Bank by the jurisdiction in which such Lender or the Issuing Bank has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any Lender, or (iii) shall impose on by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or the Issuing Bank or the London Interbank Market interbank market (or other relevant interbank market) any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Eurodollar Loan made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or the Issuing Bank of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder or under the Notes (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or the Issuing Bank to be material, then the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or the Issuing Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the date hereof in any such law, rule, regulation, agreement or any change guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or the Issuing Bank or any Lender's or the Issuing Bank's holding company 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, Authority has or would have the effect of reducing the rate of return on such Lender's or the Issuing Bank's capital or on the capital of such Lender's or the LenderIssuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender (or its the Issuing Bank or such Lender's or the Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or the Issuing Bank's policies or and the policies of its such Lender's or the Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or the Issuing Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or the Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or the Issuing Bank or its holding company, as applicable, as specified in paragraph clause (a) or (b) above, as the case may be), and (ii) showing the method of calculation of such amount or amounts referred to in the preceding clause (i)reasonable detail, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender or the Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights or the Issuing Bank's right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Periodcompensation. The protection of this Section 2.14 shall be available to each Lender and the Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 2 contracts
Samples: Credit Agreement (Cross Country Inc), Credit Agreement (Cross Country Healthcare Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change Change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall:
(i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any Lender, to or (iii) shall impose on participated in by any Lender or the Issuing Bank (except any such reserve requirement that is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on such Lender or the Issuing Bank or the London Interbank Market interbank market any other condition condition, cost or expense affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such Lender, Lender or any Letter of Credit or participation therein (other than with respect to Taxes); and the result of any of the foregoing shall be to increase the cost to such Lender Lender, the Issuing Bank or such other Recipient of making making, converting to, continuing or maintaining any LIBOR Loan Eurodollar Loan, or Fixed Rate Loan maintaining its obligation to make such a loan, or increase the cost to any Lender, the Issuing Bank or such other Recipient of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material), then the Borrower shall will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, upon demand, such additional amount or amounts as will compensate such Lender Lender, the Issuing Bank or such other Recipient, as the case may be, for such increase additional costs incurred or reduction suffered; provided that the Borrower shall not be liable for such compensation as a result of circumstances referred to above (A) if such Lender upon demand circumstances are resulting from a market disruption and are not generally affecting the banking market or (B) in the case of any request for payment in respect of a market disruption, such request is not made by such Lenderthe Required Lenders.
(b) If, after the date of this Agreement, If any Lender or the Issuing Bank shall have determined that any Change in good faith that the adoption after the date hereof of any applicable law, rule, regulation Law affecting such Lender or guideline regarding capital adequacy, Issuing Bank or any change therein, or any change 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 any Lender (or any Lending Office lending office of such Lender or Issuing Bank or such Lender) with any request ’s or directive Issuing Bank’s holding company, if any, regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, liquidity requirements has or would have the effect of reducing the rate of return on such Lender's ’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Lender's Issuing Bank’s holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender (or its the Issuing Bank or such Lender’s or the Issuing Bank’s holding company) company could have achieved but for such applicability, adoption, change or compliance Change in Law (taking into consideration such Lender's ’s or the Issuing Bank’s policies or and the policies of its such Lender’s or the Issuing Bank’s holding companycompany with respect to capital adequacy or liquidity), then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, with respect to capital adequacy) by an amount deemed by such Lender to be material, then, from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or the Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or the Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender or the Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender Lender, the Issuing Bank or such other Recipient to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect pursuant to any Interest Period this Section 2.14 shall not constitute a waiver of such Lender's rights ’s, the Issuing Bank’s, or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be under any obligation to compensate any Lender, the Issuing Bank or such other Recipient under paragraph (a) or (b) above with respect to any increased costs or expenses incurred or reductions suffered more than 270 days prior to the date that such Lender, the Issuing Bank or such other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or expenses or reductions and of such Lender’s, Issuing Bank’s or such other Recipient’s intention to claim compensation therefor; provided further that if the Change in Law giving rise to such increased costs or expenses or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof. Notwithstanding the above, a Lender will not be entitled to demand compensation for any increased costs cost or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period thereto if it is not the general policy or any other Interest Period. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office practice of such Lender if as to demand it of borrowers in similar circumstances under comparable provisions of credit agreements for borrowers of a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lendersimilar nature.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 2 contracts
Samples: Credit Agreement (AssetMark Financial Holdings, Inc.), Credit Agreement (AssetMark Financial Holdings, Inc.)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or an Issuing Bank of the principal of or interest on any LIBOR Loan or Fixed Rate Eurodollar Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than (x) changes in respect of taxes imposed on the overall net income of such Lender or Issuing Bank by the jurisdiction in which such Lender or Issuing Bank has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, by any Lender, Lender or an Issuing Bank (iiiexcept any such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall impose on any such Lender or Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan increase the cost to any Lender or Issuing Bank of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or Issuing Bank to be material, then the Borrower shall Borrowers will pay to such Lender or Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or an Issuing Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the date hereof in any such law, rule, regulation, agreement or any change guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or an Issuing Bank or any Lender's or Issuing Bank's holding company 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, Authority has or would have the effect of reducing the rate of return on such Lender's or Issuing Bank's capital or on the capital of the such Lender's or Issuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by such Issuing Bank pursuant hereto to a level below that which such Lender (or its Issuing Bank or such Lender's or Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or Issuing Bank's policies or and the policies of its such Lender's or Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or Issuing Bank to be material, then, then from time to time, time the Borrower Borrowers shall pay to the Administrative Agent for the account of such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Bank or such Lender's or Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or an Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower Borrowers and shall be conclusive absent manifest error. Such certificate (i) shall set forth in reasonable detail the conditions giving rise to a circumstance or situation under Section 2.14(a) or (b), and (ii) shall set forth the calculations of the amounts to be paid by the applicable Borrower (which calculations shall be made in the same manner as for similar outstanding loans made by such Lender of a similar type and amount as Loans by such Lender under this Agreement to persons of creditworthiness similar to that of the Parent Borrower), and, if made in accordance with this sentence, shall be conclusive absent manifest error. The Borrower Borrowers shall pay the Administrative Agent for the account of such Lender or Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or any Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights or Issuing Bank's right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Periodcompensation. The protection of this Section 2.14 shall be available to each Lender and Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 2 contracts
Samples: Credit Agreement (Magellan Health Services Inc), Credit Agreement (Magellan Health Services Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date any Change in Law affecting any Lender or Issuing Bank or any lending office of this Agreement any change in Applicable Law such Lender’s or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) Issuing Bank’s holding company, if any, shall (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, of or credit extended byby any Lender or any Issuing Bank, (ii) subject the Administrative Agent, any LenderLender or any Issuing Bank to any Taxes in connection with this Agreement or any Loan, Letter of Credit or Commitment made hereunder or its deposits, reserves, other liabilities or capital attributable thereto, or change the basis of taxation payments in respect thereof (except, in each case, (A) for Indemnified Taxes or Other Taxes indemnified pursuant to Section 2.20, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) or (iii) shall impose on any such Lender or the London Interbank Market such Issuing Bank any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Term SOFR Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost (other than Taxes) to such Lender or such Issuing Bank of making or maintaining any LIBOR Term SOFR Loan or Fixed Rate Loan increase the cost (other than Taxes) to any Lender or any Issuing Bank of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material), then the Borrower shall Borrowers will pay to such Lender or such Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender for or such increase or reduction to such Lender upon demand by such Lender.
(b) If, after the date of this Agreement, any Lender shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of 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 capital or on the capital of the Lender's holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its holding company) could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or the policies of its holding companyIssuing Bank, as the case may be, with respect to capital adequacy) by an amount deemed by such Lender to be material, then, from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such reduction upon demand by such Lender.
(c) A certificate of a Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 10 Business Days after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation for any increased costs incurred or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposedsuffered.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 2 contracts
Samples: Credit Agreement (Enviva Inc.), Credit Agreement (Enviva Inc.)
Reserve Requirements; Change in Circumstances. (a) It is understood that the cost to each Lender of making or maintaining any of the SOFR, Eurocurrency or Pounds Sterling Loans may fluctuate as a result of the applicability of reserve requirements imposed by the Board at the ratios provided for in Regulation D on the Closing Date. The Borrowers agree to pay to such Lender from time to time such amounts as shall be necessary to compensate such Lender for the portion of the cost of making or maintaining SOFR, Eurocurrency or Pounds Sterling Loans resulting from any increase in such reserve requirements provided for in Regulation D (or any successor regulation or ruling issued in respect thereof) from those as in effect on the Closing Date, it being understood that the rates of interest applicable to such Loans have been determined on the assumption that no such reserve requirements exist or will exist and that such rates do not reflect costs imposed on the Lenders in connection with such reserve requirements.
(b) Notwithstanding any other provision herein, if after the date of this Agreement any change Change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect Recipient to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder Taxes (other than (xA) taxes Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Other Connection Taxes that are imposed on the overall or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes) on its loans, loan principal, letters of such Lender by the jurisdiction in which such Lender has its principal office credit, commitments or other obligations, or its applicable Lending Office deposits, reserves other liabilities or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement)capital attributable thereto, (ii) shall impose, modify or deem applicable any reserve, special deposit deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender, Lender (other than any amounts described in paragraph (a) above) or (iii) shall impose on any Lender or any Issuing Bank or the London Interbank Market interbank market any other condition condition, cost or expense (other than Taxes) affecting this Agreement or any LIBOR Loan SOFR, Eurocurrency or Fixed Rate Loan Pounds Sterling Loans made by such Lender, Lender or any Letter of Credit or participation therein; and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making making, converting to, continuing or maintaining any LIBOR SOFR, Eurocurrency or Pounds Sterling Loan or Fixed Rate Loan of maintaining its obligation to make any such Loan, or to increase the cost to such Lender or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit) or to reduce the amount of any sum received or receivable by such Lender or such other Recipient hereunder (whether of principal, interest or otherwise) in respect thereof thereof, by an amount deemed in good faith by such Lender or such other Recipient in its sole discretion to be material, then the Borrower Borrowers shall pay as required in Section 5.8(d) such additional amount or amounts as will compensate such Lender or such other Recipient for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(bc) If, after the date of this Agreement, If any Lender or any Issuing Bank shall have determined that any Change in good faith that the adoption after the date hereof Law affecting such Lender or such Issuing Bank or any lending office of any applicable lawsuch Lender or such Lender’s or such Issuing Bank’s holding company, ruleif any, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of 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 agencyliquidity requirements, has or would have the effect of reducing the rate of return on such Lender's ’s or such Issuing Bank’s capital or on the capital of the such Lender's ’s or such Issuing Bank’s holding company, if any, as a consequence of its obligations hereunder this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swing Line Loans held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender (or its such Issuing Bank or such Lender’s or such Issuing Bank’s holding company) company could have achieved but for such applicability, adoption, change or compliance Change in Law (taking into consideration such Lender's ’s or such Issuing Bank’s policies or and the policies of its such Lender’s or such Issuing Bank’s holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or such Issuing Bank in its sole discretion to be material, then, from time to time, then the Borrower Borrowers shall pay as required to the Administrative Agent for the account of Section 5.8(d) to such Lender or such Issuing Bank such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction upon demand by such Lendersuffered.
(cd) A certificate of a Lender or an Issuing Bank setting forth in reasonable detail calculations (itogether with the basis and assumptions therefor) to establish such amount or amounts as shall be necessary to compensate without duplication such Lender as specified in paragraph (aor participating banks or other entities pursuant to Section 13.3 subject to the limitations set forth therein) or (b) abovesuch Issuing Bank or its holding company, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (iunder Section 5.8(a), Section 5.8(b) or Section 5.8(c) shall be delivered to the Borrower Agent which shall promptly deliver the same to the Company and such certificate shall be conclusive absent manifest errorrebuttably presumptive evidence of the amount or amounts which such Lender or such Issuing Bank is entitled to receive. The Borrower Borrowers shall pay the Administrative Agent for the account of such Lender or such Issuing Bank the amount shown as due on any such certificate within 10 Business Days ten (10) days after its receipt of the same.
(de) Failure Any demand for compensation pursuant to this Section 5.8 must be made on or before one (1) year after the part of any Lender or Issuing Bank incurs the expense, cost or economic loss referred to demand compensation for any increased costs or reduction in amounts received such Lender or receivable or reduction in return on capital with respect Issuing Bank shall be deemed to any Interest Period shall not constitute a waiver of such Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect have waived the right to such Interest Period or any other Interest Periodcompensation. The protection of this Section 2.14 5.8 shall be available to each Lender and Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the any law, regulation or other condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it give rise to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable demand by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such LenderIssuing Bank for compensation.
(f) In the event Nothing in this Section 5.8 shall entitle any Lender shall have delivered to the Borrower receive interest at a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any rate per annum in excess of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9Highest Lawful Rate.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Group 1 Automotive Inc), Revolving Credit Agreement (Group 1 Automotive Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or Issuing Bank of the principal of or interest on any LIBOR Eurocurrency Loan, Eurodollar Loan, CD Loan or Fixed Rate Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than (x) changes in respect of taxes imposed on the overall net income of such Lender or Issuing Bank by the any jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxesthereof) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, by such Lender or such Issuing Bank (except any Lendersuch reserve requirement which is already reflected in the definition of the applicable Rate), or (iii) shall impose on any such Lender or such Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Eurocurrency Loan, Eurodollar Loan, CD Loan or Fixed Rate Loan made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or Issuing Bank of making or maintaining any LIBOR Eurocurrency Loan, Eurodollar Loan, CD Loan or Fixed Rate Loan or increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or such Issuing Bank to be material, then the applicable Borrower shall pay to such Lender or such Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or such Issuing Bank, as the case may be, for such increase additional costs incurred or reduction suffered. Notwithstanding the foregoing, no Lender shall be entitled to request compensation under this paragraph with respect to any Competitive Loan if it should have been aware of the change giving rise to such Lender upon demand by request at the time of submission of the Competitive Bid pursuant to which such LenderCompetitive Loan shall have been made.
(b) If, after the date of this Agreement, If any Lender or Issuing Bank shall have determined in good faith that the applicability of any law, rule, regulation or guideline adopted pursuant to or arising out of the July 1988 report of the Basle Committee on Banking Regulations and Supervisory Practices entitled "International Convergence of Capital Measurement and Capital Standards", or the adoption after the date hereof of any applicable other law, rule, regulation or guideline regarding capital adequacy, or any change therein, in any of the foregoing or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or any Issuing Bank or any Lender's or Issuing Bank's holding company 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 Issuing Bank's capital or on the capital of the such Lender's or Issuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by such Issuing Bank pursuant hereto to a level below that which such Lender (or its Issuing Bank or such Lender's or Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or Issuing Bank's policies or and the policies of its such Lender's or Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or Issuing Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Bank or such Lender's or Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or Issuing Bank setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender or Issuing Bank, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower and shall be conclusive absent manifest errorBorrower. The Borrower shall pay the Administrative Agent for the account of such each Lender or Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its the receipt of the same. In the event any Lender delivers such a certificate, the Borrower may, at its sole expense and effort, require such Lender to transfer and assign, without recourse (in accordance with Section 9.04) all its interests, rights and obligations under this Agreement to an assignee which shall assume such assigned obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided, however, that (i) such assignment shall not conflict with any law, rule or regulation or order of any Governmental Authority, (ii) the Borrower shall have received a written consent of the Agent in the case of an assignee that is not a Lender, which consent shall not unreasonably be withheld, and (iii) the Borrower or such assignee shall have paid to the assigning Lender in immediately available funds the principal of and interest accrued to the date of such payment on the Loans made by it hereunder and all other amounts owed to it hereunder.
(d) Failure on the part of any Lender or the Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such Lender's rights or Issuing Bank's right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Period. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposedperiod.
(e) Each Lender agrees thatWithout prejudice to the survival of any other agreement contained herein, as promptly as practicable after it becomes aware the agreements and obligations contained in this Section shall survive the payment in full of the occurrence principal of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected and interest on all Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lendermade hereunder.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 2 contracts
Samples: Revolving Credit Facility Agreement (Choice Hotels Holdings Inc), Revolving Credit Facility Agreement (Choice Hotels Holdings Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change Change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall:
(i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended byby any Lender (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, any Lender(B) Taxes described in clauses (b) through (d) of the definition of “Excluded Taxes” and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) shall impose on any Lender or the London Interbank Market interbank market any other condition condition, cost or expense (other than Taxes) affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Loans made by such Lender, ; and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making making, converting to, continuing or maintaining any LIBOR Loan or Fixed Rate Loan of maintaining its obligation to make such Loan, or to increase the cost to such Lender, or to reduce the amount of any sum received or receivable by such Lender hereunder or such other Recipient, (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material), then the Borrower shall will pay to such Lender or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or such other Recipient, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender shall have determined that any Change in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline Law regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of 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, liquidity requirements has or would have the effect of reducing the rate of return on such Lender's ’s capital or on the capital of the such Lender's ’s holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made pursuant hereto to a level below that which such Lender (or its such Lender’s holding company) company could have achieved but for such applicability, adoption, change or compliance Change in Law (taking into consideration such Lender's ’s policies or and the policies of its such Lender’s holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender to be material), then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender Lender, such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), this Section 2.14 shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect pursuant to any Interest Period this Section 2.14 shall not constitute a waiver of such Lender's rights ’s right to demand compensation such compensation; provided that the Borrower shall not be under any obligation to compensate any Lender under paragraph (a) or (b) of this Section 2.14 for any increased costs incurred or reduction reductions suffered more than 180 days prior to the date that such Lender notifies the Borrower of the Change in amounts received or receivable or reduction in return on capital with respect Law giving rise to such Interest Period increased costs or any other Interest Periodreductions, and of such Lender’s intention to claim compensation thereof (except that, if the 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). The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of the invalidity or inapplicability of the law, regulation or condition which Change in Law that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Neff Corp), Second Lien Credit Agreement (Neff Corp)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any Lender, or (iii) shall impose on by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted EURIBOR or the Adjusted LIBOR) or shall impose on such Lender or the Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurocurrency Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or the Issuing Bank of making or maintaining any LIBOR Eurocurrency Loan or Fixed Rate Loan increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or the Issuing Bank to be material, then the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or the Issuing Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the date hereof in any such law, rule, regulation, agreement or any change guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or the Issuing Bank or any Lender's or the Issuing Bank's holding company 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, Authority has or would have the effect of reducing the rate of return on such Lender's or the Issuing Bank's capital or on the capital of such Lender's or the LenderIssuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender (or its the Issuing Bank or such Lender's or the Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or the Issuing Bank's policies or and the policies of its such Lender's or the Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or the Issuing Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or the Issuing Bank, setting forth in reasonable detail (i) such the reason therefor, the amount or amounts as shall be necessary to compensate such Lender or the Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i)thereof, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender or the Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights or the Issuing Bank's right to demand such compensation; provided that the Borrower shall not be under any obligation to compensate any Lender or the Issuing Bank under paragraph (a) or (b) above with respect to increased costs or reductions with respect to any period prior to the date that is four months prior to such request if such Lender or the Issuing Bank knew or could reasonably have been expected to be aware of the circumstances giving rise to such increased costs or reductions and of the fact that such circumstances would in fact result in a claim for increased compensation for by reason of such increased costs or reductions; provided further that the foregoing limitation shall not apply to any increased costs or reduction in amounts received reductions arising out of the retroactive application of any law, regulation, rule, guideline or receivable or reduction in return on capital with respect to directive as aforesaid within such Interest Period or any other Interest Periodfour-month period. The protection of this Section 2.14 shall be available to each Lender and the Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 2 contracts
Samples: Credit Agreement (Actuant Corp), Credit Agreement (Applied Power Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinherein (but subject to paragraph (d) below and Section 2.21), if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or any Issuing Bank of the principal of or interest on any LIBOR Loan or Fixed Rate NIBOR Loan made by such Lender Lender, any LC Disbursement or any Fees or other fees or amounts payable hereunder (other than (x) changes in respect of taxes imposed on the overall net income of such Lender or such Issuing Bank by the jurisdiction in which such Lender or such Issuing Bank has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any Lender, by such Lender or (iii) such Issuing Bank or shall impose on any such Lender or Issuing Bank, or the London Interbank Market interbank market or the international interbank market for deposits of the applicable currency any other condition affecting this Agreement or any LIBOR Loan Loans or Fixed Rate Loan NIBOR Loans made by such LenderLender or Letters of Credit issued by such Issuing Bank, and the result of any of the foregoing shall be to increase the cost to such Lender or such Issuing Bank of making or maintaining any LIBOR such Loan or Fixed Rate Loan issuing or maintaining any letter of credit or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or such Issuing Bank to be material, then the applicable Borrower (or, if such cost or reduction shall not be attributable to a particular Loan or Loans, Millennium America), will pay to such Lender or such Issuing Bank upon demand such additional amount or amounts as will compensate such Lender or such Issuing Bank for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) IfSubject to Section 2.22, after the date of this Agreement, if any Lender or any Issuing Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, in any of the foregoing or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Issuing Bank or any Lender (or any Lending Office lending office of such Lender) or any Issuing Bank or any Lender's or any Issuing Bank's holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of made or promulgated after the date hereof by 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 Issuing Bank's capital or on the capital of the such Lender's or such Issuing Bank's holding company, if any, as a consequence of its obligations hereunder under this Agreement or the Loans made by such Lender or such Issuing Bank's pursuant hereto to a level below that which such Lender (or its such Issuing Bank or such Lender's or such Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or the policies of its holding company, as the case may be, such Issuing Bank's guidelines with respect to capital adequacy) by an amount deemed by such Lender or such Issuing Bank to be material, then, then from time to time, the Borrower time Millennium America shall pay to the Administrative Agent for the account of such Lender or such Issuing Bank such additional amount or amounts as will compensate such Lender or such Lender's or such Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a each Lender or each Issuing Bank setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender (or its participating banks or other entities pursuant to Section 10.06) or such Issuing Bank as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower Millennium America and shall be conclusive absent manifest error. The Borrower Except as provided in paragraph (d) below, the applicable Borrowers or Millennium America, as the case may be, shall pay the Administrative Agent for the account of such each Lender or each Issuing Bank the amount shown as due on any such certificate delivered by such Lender or such Issuing Bank within 10 Business Days 30 days after its receipt of the same. Each Lender or each Issuing Bank shall submit such a certificate no more often than monthly; provided, however, that certificates with respect to amounts due with respect to identifiable Loans may be submitted at the ends of such Loans' Interest Periods.
(d) Failure on the part of any Lender or any Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's or such Issuing Bank's rights with respect to any period to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Period. The protection of period; provided, however, that no Lender or Issuing Bank shall be entitled to compensation under this Section 2.14 shall be available for any costs incurred or reductions suffered with respect to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which date unless it shall have been imposed.
notified Millennium America or Millennium that it will demand compensation for such costs or reductions under paragraph (ec) Each Lender agrees that, as promptly as practicable above not more than 90 days after it becomes aware the later of the occurrence of an event or the existence of a condition that (i) would cause such date and (ii) the date on which it to incur shall have become aware of such costs or reductions. Notwithstanding any other provision of this Section, no Lender or Issuing Bank shall demand compensation for any increased cost or reduction referred to above if it shall not at the time be the general policy or practice of such Lender to demand such compensation in similar circumstances under this Section 2.15comparable provisions of other credit agreements, Section 2.16, Section 2.21 if any. If any Lender or Section 2.24(gany Issuing Bank shall receive as a refund any moneys from any source that it has listed on the certificate provided pursuant to (c) or (ii) would require the Borrower to pay above as an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition andcost, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund that the applicable Borrower or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and ifMillennium America, as determined by the case may be, has previously paid such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due increased cost to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurredsuch Issuing Bank's, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there Lender or such Issuing Bank shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice promptly forward such refund to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9Borrower or Millennium America without interest.
Appears in 2 contracts
Samples: Credit Agreement (Millennium America Inc), Credit Agreement (Millennium Chemicals Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change Change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall (i) shall subject any Lender to, or increase the net amount of, to any tax, levy, impost, duty, charge, fee, deduction or withholding tax of any kind whatsoever with respect to this Agreement or any LIBOR Eurodollar Loan or Fixed Rate Loanmade by it, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Eurodollar Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than (xA) changes in respect of taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein and (B) Taxes or any tax Other Taxes, which is enacted or adopted shall be governed by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirementSection 2.16), ; (ii) shall impose, modify or deem applicable any reserve, special deposit deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended by, or participated in by any Lender, Lender (except any reserve requirement reflected in the Eurodollar Rate hereunder); or (iii) shall impose on any Lender or the London Interbank Market interbank eurodollar market any other condition condition, cost or expense affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such Lender, ; and the result of any of the foregoing shall be to increase the cost to such Lender of making making, converting to, continuing or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan of maintaining its obligation to make any such Loan, or to increase the cost to such Lender, or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by ), then, upon prompt request of such Lender, such Borrower will pay to such Lender to be material, then the Borrower shall pay as provided in Section 2.09(c) such additional amount or amounts as will compensate such Lender for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender shall have determined determines that any Change in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Law affecting such Lender (or any Lending Office of such Lender or such Lender) with any request or directive ’s holding company, if any, regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agencyliquidity requirements, has or would have the effect of reducing the rate of return on such Lender's ’s capital or on the capital of the such Lender's ’s holding company, if any, as a consequence of its obligations hereunder this Agreement, the Commitments of such Lender or the Loans made by such Lender, to a level below that which such Lender (or its such Lender’s holding company) company could have achieved but for such applicability, adoption, change or compliance Change in Law (taking into consideration such Lender's ’s policies or and the policies of its such Lender’s holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender to be materialadequacy and liquidity), then, then from time to time, the each Borrower shall pay as provided in Section 2.09(c) to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such reduction upon demand by such Lender.
(c) A certificate of a Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 10 Business Days after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in ’s holding company for any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9reduction suffered.
Appears in 2 contracts
Samples: Revolving Credit Agreement, Revolving Credit Agreement (Avangrid, Inc.)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinherein (but subject to paragraph (d) below and Section 2.20), if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or any Fronting Bank, as applicable, of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other Letter of Credit or participation therein or any fees or other amounts payable hereunder (other than changes in respect of Taxes referred to in clause (xa) taxes imposed on or (b) of the overall net income definition of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office “Excluded Taxes”) or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any Lender, by such Lender or (iii) Fronting Bank or shall impose on any Lender such Lender, such Fronting Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR such Loan or Fixed Rate Loan to increase the cost to such Lender or such Fronting Bank of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or such Fronting Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the Borrower shall Borrowers will pay to such Lender or such Fronting Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Fronting Bank for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) IfSubject to Section 2.20, after the date of this Agreement, if any Lender or any Fronting Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, after the date hereof in any of the foregoing or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender or any Fronting Bank (or any Lending Office lending office of such Lender or Fronting Bank) or any Lender) ’s or any Fronting Bank’s holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of made or promulgated after the date hereof by 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 ’s or such Fronting Bank’s capital or on the capital of the such Lender's ’s or such Fronting Bank’s holding company, if any, as a consequence of its obligations hereunder under this Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Fronting Bank, pursuant hereto to a level below that which such Lender (or its such Fronting Bank or such Lender’s or such Fronting Bank’s holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies ’s or the policies of its holding company, as the case may be, such Fronting Bank’s guidelines with respect to capital adequacy) by an amount deemed by such Lender or such Fronting Bank to be material, then, then from time to time, time the Borrower Borrowers shall pay to the Administrative Agent for the account of such Lender or such Fronting Bank such additional amount or amounts as will compensate such Lender or such Fronting Bank or such Lender’s or such Fronting Bank’s holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a each Lender or any Fronting Bank setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender or Fronting Bank (or its participating banks or other entities pursuant to Section 10.07) as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower Borrowers and shall be conclusive absent manifest error. The Borrower Except as provided in paragraph (d) below, the Borrowers shall pay the Administrative Agent for the account of such each Lender or Fronting Bank the amount shown as due on any such certificate delivered by such Lender or Fronting Bank within 10 Business Days 30 days after its receipt of the same. Each Lender or Fronting Bank shall submit such a certificate no more often than monthly; provided, however, that certificates with respect to amounts due with respect to identifiable Loans may be submitted at the ends of such Loans’ Interest Periods.
(d) Failure on the part of any Lender or Fronting Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's ’s or Fronting Bank’s rights with respect to any period to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Periodperiod; provided, however, that neither any Lender nor any Fronting Bank shall be entitled to compensation under this Section 2.14 for any costs incurred or reductions suffered more than 90 days prior to the date on which it shall have requested compensation therefor; provided further, that if the change in law or regulation or in the interpretation or administration thereof that shall give rise to any such costs or reductions shall be retroactive, then the 90-day period referred to above shall be extended to include the period of retroactive effect thereof. The protection Notwithstanding any other provision of this Section 2.14 2.14, neither any Lender nor any Fronting Bank shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur demand compensation for any increased cost or reduction referred to above if it shall not at the time be the general policy or practice of such Lender or such Fronting Bank to demand such compensation in similar circumstances under this Section 2.15comparable provisions of other credit agreements, Section 2.16, Section 2.21 if any. If any Lender or Section 2.24(gany Fronting Bank shall receive as a refund any moneys from any source that it has listed on the certificate provided pursuant to (c) or (ii) would require the Borrower to pay above as an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition andcost, to the extent not inconsistent with that the Borrowers have previously paid such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due cost to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurredsuch Fronting Bank, the Borrower may (but subject in any such case Lender or Fronting Bank shall promptly forward such refund to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9Borrowers without interest.
Appears in 2 contracts
Samples: Credit Agreement (Equistar Chemicals Lp), Credit Agreement (Lyondell Chemical Co)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change Change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall
(i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with with, or for the account of, or credit extended by, any LenderLender or any Issuing Bank, except any such reserve requirement that is reflected in the Adjusted LIBO Rate, the EURIBO Rate, the Discount Rate or the Bank Xxxx Rate;
(ii) subject any Lender or any Issuing Bank to any Taxes (other than (A) Indemnified Taxes and (B) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) shall impose on any Lender or the London Interbank Market any Issuing Bank or any applicable interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Loans made by such Lender or any Letter of Credit or participation therein (other than any change to the basis or rate of taxation applicable to any Lender), and the result of any of the foregoing shall be to increase the cost to such Lender or such Issuing Bank of making or maintaining any LIBOR Loan or Fixed Rate Loan or increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or such Issuing Bank to be material, then the Borrower shall applicable Borrowers will pay to such Lender or such Issuing Bank, as the case may be, such additional amount or amounts (without duplication of amounts paid by the Borrowers pursuant to Section 2.20) as will compensate such Lender or such Issuing Bank, as the case may be, for such increase additional costs incurred or reduction suffered; provided that such amounts shall be proportionate and non-discriminatory relative to the amounts that such Lender upon demand or Issuing Bank charges borrowers or account parties for such additional amounts incurred in connection with substantially similar facilities as determined by such LenderLender or Issuing Bank acting in good faith exercising reasonable credit judgment.
(b) If, after the date of this Agreement, If any Lender or any Issuing Bank shall have determined that any Change in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of such Lender) with any request or directive Law regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, liquidity requirements has or would have the effect of reducing the rate of return on such Lender's ’s or such Issuing Bank’s capital or on the capital of the such Lender's ’s or such Issuing Bank’s holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by such Issuing Bank pursuant hereto to a level below that which such Lender (or its such Issuing Bank or such Lender’s or the Issuing Bank’s holding company) company could have achieved but for such applicability, adoption, change or compliance Change in Law (taking into consideration such Lender's ’s or such Issuing Bank’s policies or and the policies of its such Lender’s or such Issuing Bank’s holding company, as the case may be, company with respect to capital adequacyadequacy or liquidity requirements) by an amount deemed by such Lender or such Issuing Bank to be material, then, then from time to time, time the applicable Borrower shall pay to the Administrative Agent for the account of such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction suffered; provided that such amounts shall be proportionate and non-discriminatory relative to the amounts that such Lender or Issuing Bank charges borrowers or account parties for such reduction upon demand additional amounts incurred in connection with substantially similar facilities as determined by such LenderLender or Issuing Bank acting in good faith exercising reasonable credit judgment.
(c) A certificate of a Lender or any Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or such Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as and setting forth in reasonable detail the case may be, and (ii) the calculation of basis on which such amount or amounts referred to in the preceding clause (i), were calculated shall be delivered to the U.S. Borrower and shall be conclusive absent manifest error. The applicable Borrower shall pay the Administrative Agent for the account of such Lender or such Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days 20 days after its receipt of the same.
(d) Failure or delay on the part of any Lender or such Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights ’s or such Issuing Bank’s right to demand such compensation; provided that the Borrowers shall not be under any obligation to compensate any Lender or such Issuing Bank under paragraph (a) or (b) above with respect to increased costs or reductions with respect to any period prior to the date that is 120 days prior to such request if such Lender or such Issuing Bank knew or could reasonably have been expected to know of the circumstances giving rise to such increased costs or reductions and of the fact that such circumstances would result in a claim for increased compensation for by reason of such increased costs or reductions; provided further that the foregoing limitation shall not apply to any increased costs or reduction reductions arising out of the retroactive application of any Change in amounts received or receivable or reduction in return on capital with respect to Law within such Interest Period or any other Interest Period120-day period. The protection of this Section 2.14 shall be available to each Lender and each Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation or condition which Change in Law that shall have occurred or been imposed.
(e) Each Lender agrees thatFor the avoidance of doubt, as promptly as practicable after it becomes aware this Section 2.14 shall apply to all requests, rules, guidelines or directives concerning capital adequacy or liquidity requirements issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives concerning capital adequacy or liquidity requirements promulgated by the Bank for International Settlements, the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority) or United States financial regulatory authorities, regardless of the occurrence of an event date adopted, issued, promulgated or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, implemented but solely to the extent not inconsistent with any Lender requesting any such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate compensation described in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or 2.14 is generally imposing such charges on similarly situated borrowers where the taxes or terms of other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by syndicated credit facilities permit it to impose such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lendercharges.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Credit Agreement (Cbre Group, Inc.)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement Closing Date any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority governmental authority (including the National Association of Insurance Commissioners) charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or any Issuing Bank in respect of any Letter of Credit or of the principal of or interest on any LIBOR Loan or Fixed Rate Eurodollar Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than changes in respect of (xi) taxes imposed on the overall net income of such Lender or such Issuing Bank by the jurisdiction in which such Lender or such Issuing Bank has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), and (ii) any Taxes described in Section 2.18), or shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, or deposits with or for the account of, of or credit extended byby or, in the case of the Letters of Credit, participated in by such Lender (except any Lender, such reserve requirement which is reflected in the Adjusted LIBO Rate) or (iii) such Issuing Bank or shall impose on any such Lender or such Issuing Bank or the London Interbank Market interbank eurodollar market any other condition affecting this Agreement Agreement, any Letter of Credit (or any LIBOR Loan participation with respect thereto), the Letter of Credit Exposure, the Letter of Credit Commitment or Fixed Rate Loan Eurodollar Loans made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender or such Issuing Bank of making or maintaining the Letter of Credit Exposure, the Letter of Credit Commitment or any LIBOR Eurodollar Loan (or, in the case of such Issuing Bank, of making any payment or Fixed Rate Loan maintaining the Letter of Credit Commitment) or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder or under the Notes (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or such Issuing Bank to be material, then the Borrower shall Company will pay to such Lender or such Issuing Bank upon demand such additional amount or amounts as will compensate such Lender or such Issuing Bank for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, any Lender shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of 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 capital or on the capital of the Lender's holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its holding company) could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or the policies of its holding company, as the case may be, with respect to capital adequacy) by an amount deemed by such Lender to be material, then, from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such reduction upon demand by such Lender.
(c) A certificate of a Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 10 Business Days after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinherein (but subject to paragraph (d) below and Section 2.21), if after the date of this Agreement any Lender or Fronting Bank becomes a Lender or Fronting Bank hereunder any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or any Fronting Bank, as applicable, of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other Letter of Credit or participation therein or any fees or other amounts payable hereunder (other than changes in respect of Taxes referred to in clause (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxesa) or (yb) any tax, assessmentof the definition of “Excluded Taxes”), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any Lender, by such Lender or Fronting Bank (iiiother than a reserve requirement reflected in the calculation of an applicable Adjusted LIBO Rate) or shall impose on any Lender such Lender, such Fronting Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR such Loan or Fixed Rate Loan to increase the cost to such Lender or such Fronting Bank of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or such Fronting Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the Borrower shall Borrowers will pay to such Lender or such Fronting Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Fronting Bank for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) IfSubject to Section 2.21, after the date of this Agreement, if any Lender or any Fronting Bank shall have determined in good faith that the adoption after the date hereof any Lender or Fronting Bank becomes a Lender or Fronting Bank hereunder of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, after such date in any of the foregoing or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender or any Fronting Bank (or any Lending Office lending office of such Lender or Fronting Bank) or any Lender) ’s or any Fronting Bank’s holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of made or promulgated after such date by 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 ’s or such Fronting Bank’s capital or on the capital of the such Lender's ’s or such Fronting Bank’s holding company, if any, as a consequence of its obligations hereunder under this Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Fronting Bank, pursuant hereto to a level below that which such Lender (or its such Fronting Bank or such Lender’s or such Fronting Bank’s holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies ’s or the policies of its holding company, as the case may be, such Fronting Bank’s guidelines with respect to capital adequacy) by an amount deemed by such Lender or such Fronting Bank to be material, then, then from time to time, time the Borrower Borrowers shall pay to the Administrative Agent for the account of such Lender or such Fronting Bank such additional amount or amounts as will compensate such Lender for such reduction upon demand by such Lender.such
(c) A certificate of a each Lender or any Fronting Bank setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender or Fronting Bank (or its participating banks or other entities pursuant to Section 10.07) as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower Borrowers and shall be conclusive absent manifest error. The Borrower Except as provided in paragraph (d) below, the Borrowers shall pay the Administrative Agent for the account of such each Lender or Fronting Bank the amount shown as due on any such certificate delivered by such Lender or Fronting Bank within 10 Business Days thirty (30) days after its receipt of the same. Each Lender or Fronting Bank shall submit such a certificate no more often than monthly; provided, however, that certificates with respect to amounts due with respect to identifiable Loans may be submitted at the ends of such Loans’ Interest Periods.
(d) Failure on the part of any Lender or Fronting Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's ’s or Fronting Bank’s rights with respect to any period to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Periodperiod; provided, however, that neither any Lender nor any Fronting Bank shall be entitled to compensation under this Section 2.14 for any costs incurred or reductions suffered more than ninety (90) days prior to the date on which it shall have requested compensation therefor; provided further, that if the Change in Law that shall give rise to any such costs or reductions shall be retroactive, then the ninety (90)-day period referred to above shall be extended to include the period of retroactive effect thereof. The protection Notwithstanding any other provision of this Section 2.14 2.14, neither any Lender nor any Fronting Bank shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur demand compensation for any increased cost or reduction referred to above if it shall not at the time be the general policy or practice of such Lender or such Fronting Bank to demand such compensation in similar circumstances under this Section 2.15comparable provisions of other credit agreements, Section 2.16, Section 2.21 if any. If any Lender or Section 2.24(gany Fronting Bank shall receive as a refund any moneys from any source that it has listed on the certificate provided pursuant to (c) or (ii) would require the Borrower to pay above as an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition andcost, to the extent not inconsistent with that the Borrowers have previously paid such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due cost to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurredsuch Fronting Bank, the Borrower may (but subject in any such case Lender or Fronting Bank shall promptly forward such refund to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9Borrowers without interest.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) It is understood that the cost to each Lender of making or maintaining any of the Eurodollar, Eurocurrency or Pounds Sterling Loans may fluctuate as a result of the applicability of reserve requirements imposed by the Board at the ratios provided for in Regulation D on the Closing Date. The Borrowers agree to pay to such Lender from time to time such amounts as shall be necessary to compensate such Lender for the portion of the cost of making or maintaining Eurodollar, Eurocurrency or Pounds Sterling Loans resulting from any increase in such reserve requirements provided for in Regulation D (or any successor regulation or ruling issued in respect thereof) from those as in effect on the Closing Date, it being understood that the rates of interest applicable to such Loans have been determined on the assumption that no such reserve requirements exist or will exist and that such rates do not reflect costs imposed on the Lenders in connection with such reserve requirements.
(b) Notwithstanding any other provision herein, if after the date of this Agreement any change Change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall (i) shall subject any Lender toLender, the Agent, the Floor Plan Agent, the Swing Line Bank or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect Issuing Bank to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder Taxes (other than (xA) taxes Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Other Connection Taxes that are imposed on the overall or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes) on its loans, loan principal, letters of such Lender by the jurisdiction in which such Lender has its principal office credit, commitments or other obligations, or its applicable Lending Office deposits, reserves other liabilities or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement)capital attributable thereto, (ii) shall impose, modify or deem applicable any reserve, special deposit deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender, Lender (other than any amounts described in clause (i) above) or (iii) shall impose on any Lender or the Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan Eurodollar, Eurocurrency or Fixed Rate Loan Pounds Sterling Loans made by such Lender, Lender or any Letter of Credit or participation therein; and the result of any of the foregoing shall be to increase the cost to such Lender or such other Person of making making, converting to, continuing or maintaining any LIBOR Eurodollar, Eurocurrency or Pounds Sterling Loan or Fixed Rate Loan of maintaining its obligation to make any such Loan, or to increase the cost to such Lender or such other Person of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit) or to reduce the amount of any sum received or receivable by such Lender or such other Person hereunder (whether of principal, interest or otherwise) in respect thereof thereof, by an amount deemed in good faith by such Lender or such other Person in its sole discretion to be material, then the Borrower Borrowers shall pay as required in Section 5.8(d) such additional amount or amounts as will compensate such Lender or such other Person for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(bc) If, after the date of this Agreement, If any Lender or the Issuing Bank shall have determined that any Change in good faith that Law affecting such Lender or the adoption after Issuing Bank or any lending office of such Lender or such Lender’s or the date hereof of any applicable lawIssuing Bank’s holding company, ruleif any, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of 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 agencyliquidity requirements, has or would have the effect of reducing the rate of return on such Lender's ’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Lender's Issuing Bank’s holding company, if any, as a consequence of its obligations hereunder this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swing Line Loans held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level below that which such Lender (or its the Issuing Bank or such Lender’s or the Issuing Bank’s holding company) company could have achieved but for such applicability, adoption, change or compliance Change in Law (taking into consideration such Lender's ’s or the Issuing Bank’s policies or and the policies of its such Lender’s or the Issuing Bank’s holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or such other Person in its sole discretion to be material, then, from time to time, then the Borrower Borrowers shall pay as required to the Administrative Agent for the account of Section 5.8(d) to such Lender or the Issuing Bank such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction upon demand by such Lendersuffered.
(cd) A certificate of a Lender or the Issuing Bank setting forth in reasonable detail calculations (itogether with the basis and assumptions therefor) to establish such amount or amounts as shall be necessary to compensate without duplication such Lender as specified in paragraph (aor participating banks or other entities pursuant to Section 13.3 subject to the limitations set forth therein) or (b) abovethe Issuing Bank or its holding company, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (iunder Section 5.8(a), Section 5.8(b) or Section 5.8(c) shall be delivered to the Borrower Agent which shall promptly deliver the same to the Company and such certificate shall be conclusive absent manifest errorrebuttably presumptive evidence of the amount or amounts which such Lender is entitled to receive. The Borrower Borrowers shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 10 Business Days ten (10) days after its receipt of the same.
(de) Failure Any demand for compensation pursuant to this Section 5.8 must be made on or before one (1) year after the part of any Lender incurs the expense, cost or economic loss referred to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect such Lender shall be deemed to any Interest Period shall not constitute a waiver of such Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect have waived the right to such Interest Period or any other Interest Periodcompensation. The protection of this Section 2.14 5.8 shall be available to each Lender regardless of any possible contention of the invalidity or inapplicability of the any law, regulation or other condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it give rise to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable demand by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lenderfor compensation.
(f) In the event Nothing in this Section 5.8 shall entitle any Lender shall have delivered to the Borrower receive interest at a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any rate per annum in excess of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9Highest Lawful Rate.
Appears in 1 contract
Samples: Revolving Credit Agreement (Group 1 Automotive Inc)
Reserve Requirements; Change in Circumstances. Increased Costs.
(a) Notwithstanding any other provision herein, if after the date of this Agreement --------------- Closing Date any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender, the Swingline Lender or the Fronting Bank of the principal of or interest on any LIBOR Loan or Fixed Rate Eurodollar Loan made by such Lender or any Letter of Credit obligations, Fees or other fees or amounts payable hereunder (other than (x) changes in respect of income and franchise taxes imposed on such Lender, the overall net income of such Swingline Lender or the Fronting Bank by the jurisdiction in which such Lender, the Swingline Lender or the Fronting Bank is organized or has its principal or lending office or its applicable Lending Office or by any political subdivision or taxing authority therein (thereof or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any by such Lender, the Swingline Lender or the Fronting Bank (iiiexcept any such reserve requirement that is reflected in the Adjusted LIBO Rate or in the Alternate Base Rate) or shall impose on any such Lender, the Swingline Lender or the Fronting Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Loan or Fixed Rate Eurodollar Loan or to reduce the amount of any sum received or receivable by such Lender, the Swingline Lender or the Fronting Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender, the Swingline Lender or the Fronting Bank to be material, then the Borrower shall will pay to such Lender, the Swingline Lender or the Fronting Bank following receipt of a certificate of such Lender, the Swingline Lender or the Fronting Bank to such effect in accordance with Section 2.14(c) such additional amount or amounts as will compensate such Lender, the Swingline Lender or the Fronting Bank on an after-tax basis for such increase additional costs incurred or reduction suffered. Notwithstanding any other provision in this paragraph (a), none of any Lender, the Swingline Lender or the Fronting Bank shall be entitled to such Lender upon demand by compensation pursuant to this paragraph (a) if it shall not be the general practice of such Lender, the Swingline Lender or the Fronting Bank, as applicable, to demand such compensation in similar circumstances under comparable provisions of other comparable credit agreements.
(b) IfIf any Lender, after the date of this Agreement, any Swingline Lender or the Fronting Bank shall have determined in good faith that the adoption after the date hereof Closing Date of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change therein, in any of the foregoing or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) ), the Swingline Lender or the Fronting Bank or any Lender's, the Swingline Lender's or the Fronting Bank's holding company, if any, with any request or directive regarding capital adequacy issued under any law, rule, regulation or guideline (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, the Swingline Lender's or the Fronting Bank's capital or on the capital of such Lender's, the Swingline Lender's or the Fronting Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made by such Lender, the Swingline Loans made by the Swingline Lender or the Letters of Credit issued by the Fronting Bank pursuant hereto to a level below that which such Lender, the Swingline Lender (or its the Fronting Bank or such Lender's, the Swingline Lender's or the Fronting Bank's holding company) , if any, could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's, the Swingline Lender's or the Fronting Bank's policies or and the policies of its such Lender's, the Swingline Lender's or the Fronting Bank's holding company, as the case may beif any, with respect to capital adequacy) by an amount deemed by such Lender, the Swingline Lender or the Fronting Bank to be material, then, then from time to time, time the Borrower shall pay to such Lender, the Administrative Agent for Swingline Lender or the account Fronting Bank following receipt of a certificate of such Lender, the Swingline Lender or the Fronting Bank to such effect in accordance with Section 2.14(c) such additional amount or amounts as will compensate such Lender, the Swingline Lender or the Fronting Bank or such Lender's, the Swingline Lender's or the Fronting Bank's holding company, if any, on an after-tax basis for any such reduction upon suffered. Notwithstanding any other provision in this paragraph (b), none of any Lender, the Swingline Lender or the Fronting Bank shall be entitled to demand by compensation pursuant to this paragraph (b) if it shall not be the general practice of such Lender, the Swingline Lender or the Fronting Bank, as applicable, to demand such compensation in similar circumstances under comparable provisions of other comparable credit agreements.
(c) A certificate of a each Lender, the Swingline Lender or the Fronting Bank setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender, the Swingline Lender or the Fronting Bank or its holding company, if any, as specified in paragraph (a) or (b) above, as the case may be, and setting forth in reasonable detail an explanation of the basis of requesting such compensation in accordance with paragraph (iia) the calculation of such amount or amounts referred to (b) above, including calculations in the preceding clause (i)reasonable detail, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay each Lender, the Administrative Agent for Swingline Lender or the account of such Lender Fronting Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure on the part of any Lender, the Swingline Lender or the Fronting Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such Lender's, the Swingline Lender's rights or the Fronting Bank's right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Periodperiod, except that none of any Lender, the Swingline Lender or the Fronting Bank shall be entitled to compensation under this Section 2.14 for any costs incurred or reduction suffered with respect to any date unless such Lender, the Swingline Lender or the Fronting Bank, as applicable, shall have notified the Borrower that it will demand compensation for such costs or reductions under paragraph (c) above, not more than six months after the later of (i) such date and (ii) the date on which such Lender, the Swingline Lender or the Fronting Bank, as applicable, shall have become aware of such costs or reductions. The protection of this Section 2.14 shall be available to each Lender, the Swingline Lender or the Fronting Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or any Fronting Bank in respect of any Letter of Credit or of the principal of or interest on any LIBOR Loan or Fixed Rate Eurodollar Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than changes in respect of (xi) taxes imposed on the overall net income of such Lender or such Fronting Bank by the jurisdiction in which such Lender or such Fronting Bank has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), and (ii) any Taxes described in Section 2.19), or shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, or deposits with or for the account of, of or credit extended byby or, in the case of the Letters of Credit, participated in by such Lender (except any Lender, such reserve requirement which is reflected in the Adjusted LIBO Rate) or (iii) such Fronting Bank or shall impose on any such Lender or such Fronting Bank or the London Interbank Market interbank eurodollar market any other condition affecting this Agreement Agreement, any Letter of Credit (or any LIBOR Loan participation with respect thereto), the Letter of Credit Exposure, the Letter of Credit Commitment or Fixed Rate Loan made by any Eurodollar Loans of such LenderLender or such Fronting Bank, and the result of any of the foregoing shall be to increase the cost to such Lender or such Fronting Bank of making or maintaining its Letter of Credit Exposure, its Letter of Credit Commitment or any LIBOR Eurodollar Loan or Fixed Rate Loan (or, in the case of such Fronting Bank, of making any payment under any Letter of Credit) or to reduce the amount of any sum received or receivable by such Lender or such Fronting Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or such Fronting Bank to be material, then from time to time the Borrower shall will pay to such Lender or such Fronting Bank upon demand such additional amount or amounts as will compensate such Lender or such Fronting Bank for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or Fronting Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, after the date hereof in any of the foregoing or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or Fronting Bank or any Lender's or Fronting Bank's holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of made or issued after the date hereof by any such Governmental Authorityauthority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such Fronting Bank's capital or on the capital of the such Lender's or such Fronting Bank's holding company, if any, as a consequence of this Agreement or its obligations hereunder pursuant hereto to a level below that which such Lender (or its such Fronting Bank or such Lender's or such Fronting Bank's holding company) could company would have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or such Fronting Bank's policies or and the policies of its such Lender's or such Fronting Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or such Fronting Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or such Fronting Bank upon demand such additional amount or amounts as will compensate such Lender or such Fronting Bank or such Lender's or such Fronting Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a each Lender or Fronting Bank setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender or such Fronting Bank or its holding company as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower through the Administrative Agent and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such each Lender or Fronting Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) In the event any Lender or Fronting Bank delivers a notice pursuant to paragraph (e) below, the Borrower may require, at the Borrower's expense and subject to Section 2.15, such Lender or such Fronting Bank to assign, at par plus accrued interest and fees, without recourse (in accordance with Section 9.04) all its interests, rights and obligations hereunder (including, in the case of a Lender, all of its Commitments and the Loans at the time owing to it and participations in Letters of Credit held by it and its obligations to acquire such participations) to a financial institution specified by the Borrower; PROVIDED that (i) such assignment shall not conflict with or violate any law, rule or regulation or order of any court or other Governmental Authority, (ii) the Borrower shall have received the written consent of the Administrative Agent (which consent shall not be unreasonably withheld) and each applicable Fronting Bank to such assignment, (iii) the Borrower shall have paid to the assigning Lender or Fronting Bank all monies accrued and owing hereunder to it (including pursuant to this Section 2.13) and (iv) in the case of a required assignment by a Fronting Bank, all outstanding Letters of Credit issued by such Fronting Bank shall be canceled and returned to such Fronting Bank.
(e) Promptly after any Lender or Fronting Bank has determined, in its sole judgment, that it will make a request for increased compensation pursuant to this Section 2.13, such Lender or such Fronting Bank will notify the Borrower thereof. Failure on the part of any Lender or Fronting Bank so to notify the Borrower or to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such Lender's rights or such Fronting Bank's right to demand compensation with respect to such period or any other period; PROVIDED that the Borrower shall not be under any obligation to compensate any Lender or Fronting Bank under paragraph (b) above with respect to increased costs or reductions with respect to any period prior to the date that is six months prior to such request if such Lender or such Fronting Bank knew or could reasonably have been expected to be aware of the circumstances giving rise to such increased costs or reductions and of the fact that such circumstances would in fact result in a claim for increased compensation by reason of such increased costs or reductions; PROVIDED FURTHER that the foregoing limitation shall not apply to any increased costs or reduction in amounts received reductions arising out of the retroactive application of any law, regulation, rule, guideline or receivable or reduction in return on capital with respect to directive as aforesaid within such Interest Period or any other Interest Periodsix month period. The protection of this Section 2.14 2.13 shall be available to each Lender and Fronting Bank regardless of any possible contention of as to the invalidity or inapplicability of the law, regulation rule, regulation, guideline or other change or condition which shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement Closing Date any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any Lender, or (iii) shall impose on by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or the Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or the Issuing Bank of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or the Issuing Bank to be material, then the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or the Issuing Bank shall have determined in good faith that the adoption after the date hereof Closing Date of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the Closing Date in any such law, rule, regulation, agreement or any change guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or the Issuing Bank or any Lender's or the Issuing Bank's holding company 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, Authority has or would have the effect of reducing the rate of return on such Lender's or the Issuing Bank's capital or on the capital of such Lender's or the LenderIssuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender (or its the Issuing Bank or such Lender's or the Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or the Issuing Bank's policies or and the policies of its such Lender's or the Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or the Issuing Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or the Issuing Bank, setting forth in reasonable detail (i) such the reason therefor, the amount or amounts as shall be necessary to compensate such Lender or the Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i)thereof, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender or the Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights or the Issuing Bank's right to demand such compensation; provided that the Borrower shall not be under any obligation to compensate any Lender or the Issuing Bank under paragraph (a) or (b) above with respect to increased costs or reductions with respect to any period prior to the date that is six months prior to such request if such Lender or the Issuing Bank knew or could reasonably have been expected to be aware of the circumstances giving rise to such increased costs or reductions and of the fact that such circumstances would in fact result in a claim for increased compensation for by reason of such increased costs or reductions; provided further that the foregoing limitation shall not apply to any increased costs or reduction in amounts received reductions arising out of the retroactive application of any law, regulation, rule, guideline or receivable or reduction in return on capital with respect to directive as aforesaid within such Interest Period or any other Interest Periodsix-month period. The protection of this Section 2.14 shall be available to each Lender and the Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Credit Agreement (Amis Holdings Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement there is adopted any new law, rule or regulation or any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, by any Lender, Bank (except any such reserve requirement which is reflected in the Eurodollar Rate) or (iii) shall impose on any Lender such Bank or the Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such LenderBank or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender Bank of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan to increase the cost to such Bank or the Issuing Bank of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender Bank or the Issuing Bank hereunder or under any Notes (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender Bank to be material, then the Borrower shall will pay to such Bank or the Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender Bank or the Issuing Bank for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) IfIf any Bank or the Issuing Bank shall have determined that the applicability of any law, rule, regulation, agreement or guideline adopted after the date hereof regarding capital adequacy, or any change in any of this Agreement, any Lender shall have determined in good faith that the foregoing or the adoption after the date hereof of any applicable change in any law, rule, regulation regulation, agreement or guideline regarding capital adequacy, existing on the date hereof or any change therein, or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authoritygovernmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender Bank or the Issuing Bank (or any Lending Office of such Lenderlending office thereof) or any Bank's or the Issuing Bank's holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authorityauthority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such LenderBank's or the Issuing Bank's capital or on the capital of such Bank's or the LenderIssuing Bank's holding company, if any, as a consequence with respect to this Agreement or Loans made by such Bank or any Letter of its obligations hereunder Credit or participation therein to a level below that which such Lender (Bank or its the Issuing Bank or such Bank's or the Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such LenderBank's or the Issuing Bank's policies or and the policies of its such Bank's or the Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender Bank or the Issuing Bank to be material, then, then from time to time, time the Borrower shall pay to such Bank or the Administrative Agent for Issuing Bank, as the account of such Lender case may be, such additional amount or amounts as will compensate such Lender Bank or the Issuing Bank or such Bank's or the Issuing Bank's holding company for any such reduction suffered. It is acknowledged that this Agreement is being entered into by the Banks and the Issuing Bank on the understanding that the Banks and the Issuing Bank will not be required to maintain capital against their obligations to make Loans or issue Letters of Credit or purchase participations therein under currently applicable laws, regulations and regulatory guidelines. In the event Banks or the Issuing Bank shall be advised by any Governmental Authority or shall otherwise determine on the basis of pronouncements of any Governmental Authority that such understanding is incorrect, it is agreed that the Banks and the Issuing Bank will be entitled to make claims under this paragraph based upon demand by such Lendermarket requirements prevailing on the date hereof for commitments under comparable credit facilities against which capital is required to be maintained.
(c) A certificate of a Lender Bank or the Issuing Bank setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender Bank or the Issuing Bank or such Bank's or the Issuing Bank's holding company as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of manner in which such amount Bank or amounts referred to in the preceding clause (i)Issuing Bank has determined the same, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for Bank or the account of such Lender Issuing Bank, as the case may be, the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure on the part of any Lender Bank or the Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such LenderBank's rights or the Issuing Bank's right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Periodperiod. The protection of this Section 2.14 shall be available to each Lender Bank and the Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, guideline or other change or condition which shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Credit Agreement (Avista Corp)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date any Change in Law affecting any Lender or Issuing Bank or any lending office of this Agreement any change in Applicable Law such Lender’s or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) Issuing Bank’s holding company, if any, shall (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, of or credit extended byby any Lender or any Issuing Bank (except any such reserve requirement which is reflected in the Reserve Adjusted Eurodollar Rate), (ii) subject the Administrative Agent, any LenderLender or any Issuing Bank to any Taxes in connection with this Agreement or any Loan, Letter of Credit or Commitment made hereunder or its deposits, reserves, other liabilities or capital attributable thereto, or change the basis of taxation payments in respect thereof (except, in each case, (A) for Indemnified Taxes or Other Taxes indemnified pursuant to Section 2.20, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) or (iii) shall impose on any such Lender or such Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost (other than Taxes) to such Lender or such Issuing Bank of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan increase the cost (other than Taxes) to any Lender or any Issuing Bank of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material), then the Borrower shall will pay to such Lender or such Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or such Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or any Issuing Bank shall have determined that any Change in good faith that the adoption after the date hereof of Law regarding any applicable law, rule, regulation capital or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of 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, liquidity requirements has or would have the effect of reducing the rate of return on such Lender's ’s or such Issuing Bank’s capital or on the capital of the such Lender's ’s or such Issuing Bank’s holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by such Issuing Bank pursuant hereto to a level below that which such Lender (or its such Issuing Bank or such Lender’s or such Issuing Bank’s holding company) company could have achieved but for such applicability, adoption, change or compliance Change in Law (taking into consideration such Lender's ’s or such Issuing Bank’s policies or and the policies of its such Lender’s or such Issuing Bank’s holding companycompany with respect to capital adequacy), then from time to time the Borrower shall pay to such Lender or such Issuing Bank, as the case may be, with respect to capital adequacy) by an amount deemed by such Lender to be material, then, from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or an Issuing Bank setting forth in reasonable detail (i) such the calculation of the amount or amounts as shall be necessary to compensate such Lender or such Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender or such Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or any Issuing Bank to demand compensation pursuant to this Section 2.14 for any increased costs incurred or reduction suffered in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights ’s or such Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be under any obligation to compensate any Lender or any Issuing Bank under paragraph (a) or (b) above with respect to increased costs incurred or reductions suffered more than 180 days prior to the date such Lender or such Issuing Bank, as applicable, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation for therefor; provided further that the foregoing limitation shall not apply to any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection reductions arising out of this Section 2.14 shall be available to each Lender regardless the retroactive application of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposedChange in Law within such 180-day period.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement Effective Date any change Change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall:
(i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender, Lender (except (A) any such reserve requirement reflected in the Eurocurrency Rate and (B) the requirements of the Bank of England and the Financial Services Authority or the European Central Bank reflected in the Mandatory Cost) or LC Issuer;
(iiiii) shall impose on any Lender or LC Issuer or the London Interbank Market interbank market any other condition condition, cost or expense (other than Taxes) affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Loans made by such LenderLender or any Letter of Credit or participations by such Lender therein; or
(iii) subject any Lender or LC Issuer to any Taxes (other than Indemnified Taxes or Excluded Taxes) on its loans, loan principal, letters of credit, commitments or other obligations, or on its deposits, reserves, other liabilities or capital attributable thereto; and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Loan or Fixed Rate Loan to increase the cost to such Lender or any LC Issuer of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or LC Issuer hereunder (whether of principal, interest or otherwise) in respect thereof by an amount reasonably deemed in good faith by such Lender or LC Issuer, as the case may be, to be material, then the Borrower shall pay such additional amount or amounts as will compensate such Lender or LC Issuer, as the case may be, for such increase additional costs or reduction will be paid by the Borrowers to such Lender or LC Issuer upon demand by demand. Notwithstanding the foregoing, no Lender shall be entitled to request compensation under this paragraph with respect to any Competitive Loan if the Change in Law giving rise to such Lenderrequest was applicable to such Lender at the time of submission of the Competitive Bid pursuant to which such Competitive Loan was made and such Lender shall have been aware of the additional cost of making such Competitive Loan resulting therefrom.
(b) If, after the date of this Agreement, If any Lender or LC Issuer shall have determined that Change in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of such Lender) with any request or directive Law regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, liquidity has or would have the effect of reducing the rate of return on such Lender's capital or on (i) the capital of such Lender or LC Issuer or the Lender's holding companycompany of such Lender or LC Issuer, if anyas the case may be, as a consequence of its obligations hereunder this Agreement, such Lender’s Commitments the Loans made by or participations in Letters of Credit held by such Lender, or the Letters of Credit issued by such LC Issuer, pursuant hereto to a level below that which such Lender (or its LC Issuer or the holding company) company of such Lender or LC Issuer, as the case may be, could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's ’s or LC Issuer’s policies or and the policies of its the holding company, as the case may be, company of such Lender or LC Issuer with respect to capital adequacy) by an amount reasonably deemed by such Lender or LC Issuer, as the case may be, to be material, then, then from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender time such additional amount or amounts as will compensate such Lender or LC Issuer or the holding company of such Lender or LC Issuer for such reduction upon demand will be paid by the Borrowers to such LenderLender or LC Issuer, as the case may be.
(c) A certificate of a any Lender or LC Issuer setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender or LC Issuer or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower Company and shall be conclusive absent manifest error. The Borrower Borrowers shall pay the Administrative Agent for the account of such Lender or LC Issuer, as the case may be, the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure on the part of any Lender or LC Issuer to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such Lender's rights ’s or LC Issuer’s right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Period. The protection of period; provided, however, that no Lender or LC Issuer shall be entitled to compensation under this Section 2.14 shall be available for any costs incurred or reductions suffered more than 90 days prior to each the date that such Lender regardless of any possible contention of invalidity or inapplicability LC Issuer, as the case may be, notifies the Company of the law, regulation Change in Law giving rise to such increased costs or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans reductions and of such Lender, or’s or LC Issuer’s intention to claim compensation therefor; provided further that, if applicable the Change in Law giving rise to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise or reductions is retroactive, then the 90 day period referred to above shall be required extended to be paid in respect include the period of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lenderretroactive effect thereof.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Hartford Financial Services Group Inc/De)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any Lender, or (iii) shall impose on by any Lender or the Issuing Bank (except any such requirement which is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or the Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurocurrency Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or the Issuing Bank of making or maintaining any LIBOR Eurocurrency Loan or Fixed Rate Loan increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or the Issuing Bank to be material, then the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, upon demand, such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or the Issuing Bank shall have determined in good faith that the adoption after the date hereof Closing Date of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the Closing Date in any such law, rule, regulation, agreement or any change guideline (whether or not having the force of law) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or the Issuing Bank or any Lender's or the Issuing Bank's holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, central bank Authority made or comparable agency, issued after the Closing Date has or would have the effect of reducing the rate of return on such Lender's or the Issuing Bank's capital or on the capital of such Lender's or the LenderIssuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender (or its the Issuing Bank or such Lender's or the Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or the Issuing Bank's policies or and the policies of its such Lender's or the Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or the Issuing Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or the Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or the Issuing Bank or its respective holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender or the Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights or the Issuing Bank's right to demand such compensation; provided that neither any Lender nor the Issuing Bank shall be entitled to compensation under this Section 2.14 for any increased costs or reduction in amounts received reductions incurred or receivable or reduction in return on capital suffered with respect to any date unless such Interest Period Lender or any other Interest Periodthe Issuing Bank, as the case may be, shall have notified the Borrower under paragraph (c) above, not more than 90 days after the later of (i) such date and (ii) the date on which such Lender or Issuing Bank, as applicable, shall have become aware of such costs or reductions. The protection of this Section 2.14 shall be available to each Lender and the Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Credit Agreement (Pacificorp /Or/)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or the Fronting Bank in respect of any Letter of Credit or of the principal of or interest on any LIBOR Loan or Fixed Rate Eurodollar Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than changes in respect of (xi) taxes imposed on the overall net income of such Lender or the Fronting Bank by the jurisdiction in which such Lender or the Fronting Bank has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), and (ii) any Taxes described in Section 2.19), or shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, or deposits with or for the account of, of or credit extended byby or, in the case of the Letters of Credit, participated in by such Lender (except any Lender, such reserve requirement which is reflected in the Adjusted LIBO Rate) or (iii) the Fronting Bank or shall impose on any such Lender or the London Interbank Market Fronting Bank or the interbank eurodollar market any other condition affecting this Agreement Agreement, any Letter of Credit (or any LIBOR Loan participation with respect thereto), the Letter of Credit Exposure, the Letter of Credit Commitment or Fixed Rate Loan made by any Eurodollar Loans of such LenderLender or the Fronting Bank, and the result of any of the foregoing shall be to increase the cost to such Lender or the Fronting Bank of making or maintaining its Letter of Credit Exposure, its Letter of Credit Commitment or any LIBOR Eurodollar Loan or Fixed Rate Loan (or, in the case of the Fronting Bank, of making any payment under any Letter of Credit) or to reduce the amount of any sum received or receivable by such Lender or the Fronting Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or the Fronting Bank to be material, then from time to time the Borrower shall will pay to such Lender or the Fronting Bank upon demand such additional amount or amounts as will compensate such Lender or the Fronting Bank for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or the Fronting Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, after the date hereof in any of the foregoing or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or the Fronting Bank or any Lender's or the Fronting Bank's holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of made or issued after the date hereof by any such Governmental Authorityauthority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or the Fronting Bank's capital or on the capital of such Lender's or the LenderFronting Bank's holding company, if any, as a consequence of this Agreement or its obligations hereunder pursuant hereto to a level below that which such Lender (or its the Fronting Bank or such Lender's or the Fronting Bank's holding company) could company would have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or the Fronting Bank's policies or and the policies of its such Lender's or the Fronting Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or the Fronting Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or the Fronting Bank upon demand such additional amount or amounts as will compensate such Lender or the Fronting Bank or such Lender's or the Fronting Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a each Lender or the Fronting Bank setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender or the Fronting Bank or its holding company as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower through the Administrative Agent and shall be conclusive absent manifest error. The Borrower shall pay each Lender or the Administrative Agent for the account of such Lender Fronting Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) In the event any Lender or the Fronting Bank delivers a notice pursuant to paragraph (e) below, the Borrower may require, at the Borrower's expense and subject to Section 2.15, such Lender or the Fronting Bank to assign, at par plus accrued interest and fees, without recourse (in accordance with Section 9.04) all its interests, rights and obligations hereunder (including, in the case of a Lender, all of its Commitments and the Loans at the time owing to it and participations in Letters of Credit held by it and its obligations to acquire such participations) to a financial institution specified by the Borrower; provided that (i) such assignment shall not conflict with or violate any law, rule or regulation or order of any court or other Governmental Authority, (ii) the Borrower shall have received the written consent of the Administrative Agent (which consent shall not be unreasonably withheld) and the Fronting Bank to such assignment, (iii) the Borrower shall have paid to the assigning Lender or the Fronting Bank all monies accrued and owing hereunder to it (including pursuant to this Section 2.13) and (iv) in the case of a required assignment by the Fronting Bank, all outstanding Letters of Credit issued by the Fronting Bank shall be canceled and returned to the Fronting Bank.
(e) Promptly after any Lender or the Fronting Bank has determined, in its sole judgment, that it will make a request for increased compensation pursuant to this Section 2.13, such Lender or the Fronting Bank will notify the Borrower thereof. Failure on the part of any Lender or the Fronting Bank so to notify the Borrower or to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such Lender's rights or the Fronting Bank's right to demand compensation with respect to such period or any other period; provided that the Borrower shall not be under any obligation to compensate any Lender or the Fronting Bank under paragraph (b) above with respect to increased costs or reductions with respect to any period prior to the date that is six months prior to such request if such Lender or the Fronting Bank knew or could reasonably have been expected to be aware of the circumstances giving rise to such increased costs or reductions and of the fact that such circumstances would in fact result in a claim for increased compensation by reason of such increased costs or reductions; provided further that the foregoing limitation shall not apply to any increased costs or reduction in amounts received reductions arising out of the retroactive application of any law, regulation, rule, guideline or receivable or reduction in return on capital with respect to directive as aforesaid within such Interest Period or any other Interest Periodsix month period. The protection of this Section 2.14 2.13 shall be available to each Lender and the Fronting Bank regardless of any possible contention of as to the invalidity or inapplicability of the law, regulation rule, regulation, guideline or other change or condition which shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) It is understood that the cost to the Banks of making or maintaining any of the Loans may fluctu ate as a result of the applicability of, or changes in, reserve requirements imposed by the Board, including but not limited to reserve requirements under Regulation D in connection with Eurocurrency Liabilities (as defined in Regulation D) at the ratios provided for in Regulation D from time to time. The Company agrees to pay to the Banks from time to time, as provided in paragraph (e) below, such amounts as shall be necessary to compensate the Banks for the portion of the cost of making or maintaining the Loans resulting from any such reserve requirements, it being understood that the rates of interest applicable to the Loans have been determined on the assumption that no such reserve requirements exist or will exist and that such rates do not reflect costs imposed on the Banks in connection with such reserve requirements.
(b) Notwithstanding any other provision herein, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender Bank of the principal of or interest on any LIBOR Eurodollar Loan, CD Loan or Fixed Rate Loan made by such Lender Bank or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender Bank by the jurisdiction in which such Lender Bank has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, such Bank or (iii) shall impose on any Lender such Bank or the London Interbank Market any other condition affecting this Agreement or any LIBOR Eurodollar Loan, CD Loan or Fixed Rate Loan made by such LenderBank, and the result of any of the foregoing shall be to increase the cost to such Lender Bank of making or maintaining any LIBOR Eurodollar Loan, CD Loan or Fixed Rate Loan or to reduce the amount of any sum received or receivable by such Lender Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender Bank to be material, then the Borrower shall pay such additional amount or amounts as will compensate such Lender Bank for such increase additional costs or reduction will be paid to such Lender Bank upon demand by such Lenderto the Company.
(bc) Without limiting the generality of Sec tion 2.18(b), if the Company shall be required by reason of any change occurring after the date of this Agreement in applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having force of law) to deduct any Taxes from or in respect of any sum payable hereunder to any Bank (i) the sum payable shall be increased by the amount necessary so that after making all such required deductions (including any deductions applicable to additional sums payable under this Section 2.18) such Bank shall receive an amount equal to the sum it would have received had no such deductions been made, (ii) the Company shall make such deductions and (iii) the Company shall pay the full amount deducted to the relevant taxing authority or other Governmental Authority in accor dance with applicable law. As soon as practicable after the date of any such payment by the Company to the relevant taxing authority or Governmental Authority, the Company shall deliver to the Administrative Agent proof satisfactory to the Administrative Agent evidencing payment thereof.
(d) If, after the date of this Agreement, any Lender Bank shall have determined in good faith that the adoption after the date hereof of any applicable applica ble law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender Bank (or any Lending Office lending office of such LenderBank) with any request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authorityauthority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such LenderBank's capital or on the capital of the Lender's holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its holding company) Bank could have achieved but for such applicability, adoption, change or compliance (taking into consideration such LenderBank's policies or the policies of its holding company, as the case may be, with respect to capital adequacy) by an amount deemed by such Lender Bank to be material, then, then from time to time, the Borrower Company shall pay to the Administrative Agent for the account of such Lender Bank such additional amount or amounts as will compensate such Lender Bank for such reduction upon demand by such Lenderreduction.
(ce) A certificate of a Lender each Bank setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender Bank (or participating banks pursuant to Article VIII) as specified in paragraph (a), (b), (c) or (bd) above, as the case may be, and be (ii) the calculation of such amount or amounts referred to be determined in the preceding clause (igood faith), shall be delivered by written or facsimile notice to the Borrower Company and shall be conclusive absent manifest error. The Borrower Company shall pay the Administrative Agent for the account of such Lender each Bank the amount shown as due on any such certificate within 10 Business Days after its receipt of the same.
(df) Failure on the part of any Lender Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such LenderBank's rights to demand compensation for any increased costs or reduction in amounts received or receivable receiv able or reduction in return on capital with respect to in such Interest Period or in any other Interest Period. The protection of this Section 2.14 shall be available to each Lender Bank regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposed.
(eg) Each Lender agrees thatIn the event that any Bank requests from the Company or the Company is required to pay any compensation pursuant to this Section 2.18, as promptly as practicable after the Company may, subject to the provisions of Sections 2.17 and 2.20, provide written or facsimile notice to such Bank (with a copy to the Administrative Agent) that it becomes aware intends to cancel the Commitment of such Bank; provided, however, that no Commit ment may be canceled if an Event of Default or an event which with the passage of time or the giving of notice or both would constitute an Event of Default shall have oc curred and be continuing. If the Company shall have provided notice that it intends to cancel such Bank's Commitment, such cancellation shall be effective (subject to the payment of all amounts owed to such Bank) three Business Days following receipt by such Bank (and the Administrative Agent) of such notice. On the date of any such cancellation, the Company shall pay or prepay all amounts owed or owing to the aforementioned Bank under this Agree ment, including but not limited to principal of and interest on all outstanding Loans made to the Company by the Bank and the Facility Fees on the amount of the occurrence Commitment so can celled accrued through the date of such cancellation; provided, however, the Company shall have the right to seek a substitute bank or substitute banks (which may be one or more of the Banks) which satisfy all the requirements of this Agreement to assume the Commitment of such cancelled Bank and to purchase its outstanding Loans (without preju dice to any obligation of the Company to prepay such Loans under Section 2.17 hereof). Any substitute bank shall become a "Bank" hereunder for all purposes hereof upon execution and delivery to the Administrative Agent and the Company of an event accession agreement, in a form to be agreed upon at the time, indicating the Commitment of such substi tute Bank, which Commitment shall not exceed the Commitment previously held by any cancelled Bank. A copy of such agreement shall be delivered to each of the Banks. Such substitute Bank shall not be required to make Loans here under until a Standby Borrowing Request has been given to the Banks pursuant to Section 2.04 hereof.
(h) Notwithstanding the foregoing, no Bank shall be entitled to any compensation described in this Section 2.18 unless, at the time it requests such compensation, it is the policy or general practice of such Bank to request compensation for comparable costs in similar circumstances under comparable provisions of other credit agreements for comparable customers unless specific facts or circumstances applicable to any obligor or the existence of a condition transactions contemplated by this Agreement would alter such policy or general practice, provided that (i) would cause it to incur any increased cost under nothing in this Section 2.15, Section 2.16, Section 2.21 2.18(h) shall preclude a Bank from waiving the collection of similar costs from one or Section 2.24(g) or more of its other customers and (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable shall have no obligation to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and determine compliance by any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9Bank with this paragraph (h).
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Providian Corp)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or Fronting Bank in respect of any Letter of Credit or of the principal of or interest on any LIBOR Loan or Fixed Rate Eurodollar Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than changes in respect of (xi) taxes imposed on the overall net income (and franchise taxes imposed in lieu thereof) of such Lender or Fronting Bank by the jurisdiction in which such Lender or Fronting Bank is organized or has its principal an office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any but such tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority does not arise as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure result of any connection by the Borrower with such jurisdiction or from a connection arising solely by virtue of the activity of such Lender or Fronting Bank or the Administrative Agent, as the case may be, pursuant to comply with or in respect of this Agreement or under any certification, information, documentation or other reporting requirement), Loan Document and (ii) any Taxes or Other Taxes described in Section 2.19), or shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, or deposits with or for the account of, of or credit extended byby or, in the case of the Letters of Credit, participated in by such Lender (except any Lender, such reserve requirement which is reflected in the Adjusted LIBO Rate) or (iii) Fronting Bank or shall impose on any such Lender or Fronting Bank or the London Interbank Market interbank Eurodollar market any other condition affecting this Agreement Agreement, any Letter of Credit (or any LIBOR Loan participation with respect thereto), the Revolving L/C Exposure or Fixed Rate Loan made by any Eurodollar Loans of such LenderLender or Fronting Bank, and the result of any of the foregoing shall be to increase the cost to such Lender or Fronting Bank of making or maintaining its Revolving L/C Exposure or any LIBOR Eurodollar Loan or Fixed Rate Loan (or, in the case of the Fronting Bank, of making any payment under any Letter of Credit) or to reduce the amount of any sum received or receivable by such Lender or Fronting Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or Fronting Bank to be material, then from time to time the Borrower shall will pay to such Lender or Fronting Bank upon demand such additional amount or amounts as will compensate such Lender or Fronting Bank for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or Fronting Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, after the date hereof in any of the foregoing or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or Fronting Bank or any Lender's or Fronting Bank's holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of made or issued after the date hereof by any such Governmental Authorityauthority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or Fronting Bank's capital or on the capital of the such Lender's or Fronting Bank's holding company, if any, as a consequence of this Agreement or its obligations hereunder pursuant hereto to a level below that which such Lender (or its Fronting Bank or such Lender's or Fronting Bank's holding company) could company would have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or Fronting Bank's policies or and the policies of its such Lender's or Fronting Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or Fronting Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or Fronting Bank upon demand such additional amount or amounts as will compensate such Lender or Fronting Bank or such Lender's or Fronting Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a each Lender or Fronting Bank setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender or Fronting Bank or its holding company as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower through the Administrative Agent and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such each Lender or Fronting Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) In the event any Lender or any Fronting Bank delivers a notice pursuant to paragraph (e) below, the Borrower may require, at the Borrower's expense and subject to Section 2.15, such Lender or such Fronting Bank to assign, at par plus accrued interest and fees, without recourse (in accordance with Section 9.04) all its interests, rights and obligations hereunder (including, in the case of a Lender, all of its Commitments and the Loans at the time owing to it and participations in Letters of Credit held by it and its obligations to acquire such participations) to a financial institution specified by the Borrower, provided that (i) such assignment shall not conflict with or violate any law, rule or regulation or order of any court or other Governmental Authority, (ii) the Borrower shall have received the written consent of the Administrative Agent (which consent shall not be unreasonably withheld) and such Fronting Bank to such assignment, (iii) the Borrower shall have concurrently paid to the assigning Lender or the Fronting Bank all moneys accrued and owing hereunder to it (including pursuant to this Section 2.13) and (iv) in the case of a required assignment by any Fronting Bank, all outstanding Letters of Credit issued by such Fronting Bank shall be canceled and returned to such Fronting Bank.
(e) Promptly after any Lender or any Fronting Bank has determined, in its sole judgment, that it will make a request for increased compensation pursuant to this Section 2.13, such Lender or Fronting Bank will notify the Borrower thereof. Failure on the part of any Lender or Fronting Bank so to notify the Borrower or to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such Lender's rights or Fronting Bank's right to demand compensation with respect to such period or any other period, provided that the Borrower shall not be under any obligation to compensate any Lender or Fronting Bank under paragraph (b) above with respect to increased costs or reductions with respect to any period prior to the date that is six months prior to such request if such Lender or Fronting Bank knew or could reasonably have been expected to be aware of the circumstances giving rise to such increased costs or reductions and of the fact that such circumstances would in fact result in a claim for increased compensation by reason of such increased costs or reductions and provided further, that the foregoing limitation shall not apply to any increased costs or reduction in amounts received reductions arising out of the retroactive application of any law, regulation, rule, guideline or receivable or reduction in return on capital with respect to directive as aforesaid within such Interest Period or any other Interest Periodsix month period. The protection of this Section 2.14 2.13 shall be available to each Lender and Fronting Bank regardless of any possible contention of as to the invalidity or inapplicability of the law, regulation rule, regulation, guideline or other change or condition which shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, or (iii) shall impose on any Lender or the London Interbank Market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Loan or Fixed Rate Loan or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the Borrower shall pay such additional amount or amounts as will compensate such Lender for such increase or reduction to such Lender upon demand by such Lender.
(b) If, after the date of this Agreement, any Lender shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of 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 capital or on the capital of the Lender's holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its holding company) could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or the policies of its holding company, as the case may be, with respect to capital adequacy) by an amount deemed by such Lender to be material, then, from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such reduction upon demand by such Lender.
(c) A certificate of a Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 10 Business Days after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, 2.16 or Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 2.16 or Section 2.24(g)2.21, it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, 2.16 or Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, 2.16 or Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.'
Appears in 1 contract
Samples: 364 Day Competitive Advance and Revolving Credit Agreement (Cendant Corp)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) Regulatory Change (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Eurodollar Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes Taxes imposed on or measured by the capital, receipts or franchises of such Lender or the overall gross or net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax Tax which is enacted or adopted by such jurisdiction, political subdivision subdivision, or taxing authority as a direct substitute for any such taxesTaxes) or (y) any taxTax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation documentation, or other reporting requirement), (ii) shall impose, modify modify, or deem applicable any reserve, special deposit deposit, or similar requirement with respect to any Eurodollar Loan, against assets of, deposits with or for the account of, or credit extended by, any Lendersuch Lender under this Agreement, or (iii) with respect to any Eurodollar Loan, shall impose on any such Lender or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Eurodollar Loan made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of maintaining its Commitment or of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest interest, or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the Borrower shall pay to the Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such increase or reduction to such Lender Lender, to the extent such amounts have not been included in the calculation of the Eurodollar Rate, upon demand by such LenderLender (through the Agent). Notwithstanding the foregoing, in no event shall any Lender be permitted to receive any compensation hereunder constituting interest in excess of the Highest Lawful Rate.
(b) If, after the date of this Agreement, If any Lender shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline Regulatory Change regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, adequacy or compliance by any Lender (or its parent or any Lending Office lending office of such Lender) with any request or directive regarding capital adequacy (whether or not having the force of lawLaw) of any such Governmental AuthorityTribunal, monetary authority, central bank bank, or comparable agency, has or would have the effect of reducing the rate of return on such Lender's (or its parent's) capital or on the capital of the Lender's holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its holding companyparent) could have achieved but for such applicabilityRegulatory Change, adoption, change or compliance (taking into consideration such Lender's policies or the policies of its holding company, as the case may be, with respect to capital adequacy) by an amount deemed in good faith by such Lender to be material, then, then from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such reduction upon demand by such LenderLender (through the Agent). Notwithstanding the foregoing, in no event shall any Lender be permitted to receive any compensation hereunder constituting interest in excess of the Highest Lawful Rate.
(c) A certificate of a Lender setting forth in reasonable detail (i) the Regulatory Change or other event giving rise to such costs, (ii) such amount or amounts as shall be necessary to compensate such Lender as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding under clause (ia)(i), shall be delivered to the Borrower (with a copy to the Agent) promptly after such Lender determines it is entitled to compensation under this Section 2.14, and shall be conclusive and binding absent manifest error. The Borrower shall pay to the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 10 Business Days 15 days after its receipt of the same. In preparing such certificate, such Lender may employ such assumptions and allocations of costs and expenses as it shall in good faith deem reasonable and may use any reasonable averaging and xxxxxxxxxxx method.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation regulation, or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender seek compensation pursuant to this Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred2.14, the Borrower may (but subject in any such case to the payments required by Section 2.17)may, provided that there shall exist no Default or Event of DefaultDefault has occurred and is continuing, upon at least five Business Days' prior written or telecopier give notice to such Lender (with copies to the Agents) that it wishes to seek one or more Eligible Assignees to assume the Commitment of such Lender and to purchase its outstanding Loans and Notes (if any). Each Lender requesting compensation pursuant to this Section 2.14 agrees to sell its Commitment, Loans, Notes, and interest in this Agreement and the Administrative Agentother Loan Papers to any such Eligible Assignee for an amount equal to the sum of the outstanding unpaid principal of and accrued interest on such Loans and Notes plus all other fees and amounts (including, but not more than 30 days after receipt without limitation, any compensation claimed by such Lender under this Section 2.14 and as to which such Lender has delivered the certificate required by Section 2.14(c) on or before the date such Commitment, Loans, and Notes are purchased) due such Lender hereunder calculated, in each case, to the date such Commitment, Loans, Notes (if any), and interest are purchased, whereupon such Lender shall have no further Commitment or other obligation to the Borrower hereunder or under any other Loan Paper.
(f) Notwithstanding anything herein to the contrary, no Lender shall be entitled to any compensation under this Section 2.14 with respect to any Competitive Loan.
(g) If the Borrower is required to pay additional amounts to or for the account of notice from any Lender pursuant to this Section 2.14, then such Lender will agree to use reasonable efforts to change the jurisdiction of its Applicable Lending Office so as to eliminate or reduce any such additional payment which may thereafter accrue if such change, in the judgment of such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing is not otherwise disadvantageous to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9Lender.
Appears in 1 contract
Samples: Competitive Advance and Revolving Credit Facility Agreement (Century Telephone Enterprises Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change Change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender (or any lending office of any Lender) of the principal of or interest on any LIBOR Eurocurrency Loan or Fixed Rate Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than (x) changes in respect of taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdictiontherein), political subdivision or taxing authority as a direct substitute for any such taxes) or (yii) subject any taxLender to any Taxes on its loans, assessmentloan principal, commitments, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certificationobligations, informationor its deposits, documentation reserves, other liabilities or other reporting requirement)capital attributable thereto, or (iiiii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, by such Lender (or any lending office of such Lender), or (iiiiv) shall impose on any such Lender or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Eurocurrency Loan or Fixed Rate Loan made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Eurocurrency Loan or Fixed Rate Loan or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the Borrower Company shall (or shall cause the Borrowers to) pay to such Lender upon demand such additional amount or amounts as will compensate such Lender for such increase additional costs incurred or reduction suffered, provided that any such payment with respect to taxes shall not include any Excluded Taxes and shall be without duplication of payments made under Section 2.19. Notwithstanding the foregoing, no Lender shall be entitled to request compensation under this paragraph with respect to any Competitive Loan if it shall have been aware of the change giving rise to such Lender upon demand by request at the time of submission of the Competitive Bid pursuant to which such LenderCompetitive Loan shall have been made.
(b) If, after the date of this Agreement, If any Lender shall have determined that a Change in good faith that Law after the date hereof or the adoption after the date hereof of any applicable other law, rule, regulation or guideline regarding capital adequacy, adequacy or any change thereinliquidity, or any change in any of the foregoing or in the interpretation or administration thereof of any of the foregoing by any Governmental Authoritygovernmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or any Lender’s holding company with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such Governmental Authorityauthority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's ’s capital or on the capital of the such Lender's ’s holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made by such Lender pursuant hereto to a level below that which such Lender (or its such Lender’s holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's ’s policies or and the policies of its such Lender’s holding company, as the case may be, company with respect to capital adequacyadequacy or liquidity) by an amount deemed by such Lender to be material, then, then from time to time, time the Company shall (or shall cause the responsible Borrower shall to) pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower Company and shall be conclusive absent manifest error. The Company shall (or shall cause the responsible Borrower shall to) pay the Administrative Agent for the account of such each Lender the amount shown as due on any such certificate delivered by it within 10 Business Days days after its the receipt of the same.
(d) Failure Except as provided below in this paragraph (d), failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such Lender's rights ’s right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Periodperiod. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, guideline or other change or condition which shall have occurred or been imposed.
(e) Each . No Lender agrees that, as promptly as practicable shall be entitled to compensation under this Section 2.13 for any costs incurred or reductions suffered with respect to any date unless it shall have notified the Company that it will demand compensation for such costs or reductions not more than ninety days after it becomes aware the later of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or such date and (ii) would require the Borrower to pay an increased amount under this Section 2.15date on which it shall have, Section 2.16or should have, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower become aware of such event costs or condition and, reductions (except that if the Change in Law giving rise to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise or reductions is retroactive, then the ninety-day period referred to above shall be required extended to be paid in respect include the period of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lenderretroactive effect thereof).
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Credit Agreement (Harsco Corp)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change Change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall (i) shall subject any Lender to, or increase the net amount of, to any tax, levy, impost, duty, charge, fee, deduction or withholding tax of any kind whatsoever with respect to this Agreement or any LIBOR Eurodollar Loan or Fixed Rate Loanmade by it, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Eurodollar Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than (xA) changes in respect of taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein and (B) Taxes or any tax Other Taxes, which is enacted or adopted shall be governed by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirementSection 2.16), ; (ii) shall impose, modify or deem applicable any reserve, special deposit deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended by, or participated in by any Lender, Lender (except any reserve requirement reflected in the Eurodollar Rate hereunder); or (iii) shall impose on any Lender or the London Interbank Market interbank eurodollar market any other condition condition, cost or expense affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such Lender, ; and the result of any of the foregoing shall be to increase the cost to such Lender of making making, converting to, continuing or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan of maintaining its obligation to make any such Loan, or to increase the cost to such Lender, or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by ), then, upon prompt request of such Lender, such Borrower will pay to such Lender to be material, then the Borrower shall pay as provided in Section 2.09(c) such additional amount or amounts as will compensate such Lender for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender shall have determined determines that any Change in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Law affecting such Lender (or any Lending Office of such Lender or such Lender) with any request or directive ’s holding company, if any, regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agencyliquidity requirements, has or would have the effect of reducing the rate of return on such Lender's ’s capital or on the capital of the such Lender's ’s holding company, if any, as a consequence of its obligations hereunder this Agreement, the Commitments of such Lender or the Loans made by such Lender, to a level below that which such Lender (or its such Lender’s holding company) company could have achieved but for such applicability, adoption, change or compliance Change in Law (taking into consideration such Lender's ’s policies or and the policies of its such Lender’s holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender to be materialadequacy and liquidity), then, then from time to time, the each Borrower shall pay as provided in Section 2.09(c) to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a each Lender signed by an officer of the respective Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender or its holding company as specified in paragraph (aSection 2.09(a) or (b) above2.09(b), as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the relevant Borrower and shall be conclusive absent manifest error. The Such Borrower shall pay the Administrative Agent for the account of such each Lender the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect pursuant to any Interest Period this Section 2.09 shall not constitute a waiver of such Lender's rights ’s right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Periodcompensation. The protection of this Section 2.14 2.09 shall be available to each Lender regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, guideline or other change or condition which shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement Closing Date any change in Applicable Law applicable law or regulation (including any change in the reserve percentages provided for in Regulation D) or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or US-Canadian Lender of the principal of or interest on any LIBOR Eurocurrency Loan, Absolute Rate Loan or Fixed Rate C$ Loan made by such Lender or any other fees or amounts payable hereunder US- Canadian Lender (other than (x) changes in respect of taxes imposed on the overall net income of such Lender or US-Canadian Lender by the jurisdiction in which such Lender or US-Canadian Lender has its principal office (or its applicable Lending Office in which it holds any Eurocurrency Loan, Absolute Rate Loan or C$ Loan) or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or and other governmental charge than taxes that would not have been imposed but for the failure of any such Lender or US-Canadian Lender to comply with any applicable certification, information, documentation or other reporting requirementrequirements), (ii) or shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, of or deposits with or for the account of, of such Lender or credit extended by, any Lender, US-Canadian Lender or (iii) shall impose on any such Lender or US-Canadian Lender or the London Interbank Market interbank market or Toronto interbank market (with respect to C$ Loans), as applicable, any other condition affecting this Agreement or any LIBOR Eurocurrency Loan, Absolute Rate Loan or Fixed Rate C$ Loan made by such Lender, Lender or US-Canadian Lender and the result of any of the foregoing shall be to increase the cost to such Lender or US-Canadian Lender of making or maintaining any LIBOR Eurocurrency Loan, Absolute Rate Loan or Fixed Rate C$ Loan or to reduce the amount of any sum received or receivable by such Lender or US-Canadian Lender hereunder (whether of principal, interest or otherwise) in respect thereof of any Eurocurrency Loan, Absolute Rate Loan or C$ Loan by an amount deemed in good faith by such the applicable Lender or US-Canadian Lender to be material, then the relevant Borrower shall or Canadian Borrower (with respect to C$ Loans) agrees to pay to such Lender or US-Canadian Lender, as applicable, as provided in paragraph (c) below such additional amount or amounts as will compensate such Lender or US-Canadian Lender, as applicable, for such increase additional costs incurred or reduction suffered. Notwithstanding the foregoing, no Lender shall be entitled to request compensation under this paragraph with respect to any Competitive Loan if the change giving rise to such Lender upon demand by request shall, or in good faith should, have been taken into account in formulating the Competitive Bid pursuant to which such LenderCompetitive Loan shall have been made.
(b) If, after the date of this AgreementIf any Lender, any US-Canadian Lender or any Issuing Lender shall have determined in good faith that the adoption after the date Closing Date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change thereinin any law, rule, regulation or any change guideline regarding capital adequacy or in the interpretation or administration thereof of any of the foregoing by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender, US-Canadian Lender (or any Lending Office lending office of such Lender or US-Canadian Lender) or Issuing Lender or any Lender's, US-Canadian Lender's or Issuing Lender's holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authorityauthority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's, US-Canadian Lender's or Issuing Lender's capital or on the capital of the such Lender's, US-Canadian Lender's or Issuing Lender's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made by such Lender or US-Canadian Lender, as applicable, or the LC Exposure of such Lender or Letters of Credit issued by such Issuing Lender pursuant hereto to a level below that which such Lender (or its Issuing Lender or such Lender's or Issuing Lender's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or Issuing Lender's policies or and the policies of its such Lender's or Issuing Lender's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or Issuing Lender to be material, then, then from time to time, the Borrower shall time Viacom agrees to pay to the Administrative Agent for the account of such Lender, US-Canadian Lender or Issuing Lender as provided in paragraph (c) below such additional amount or amounts as will compensate such Lender, US-Canadian Lender or Issuing Lender or such Lender's, US-Canadian Lender's or Issuing Lender's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a each Lender, US-Canadian Lender or Issuing Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender, US-Canadian Lender or Issuing Lender as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to basis therefor in the preceding clause (i), reasonable detail shall be delivered to the relevant Borrower or Canadian Borrower and shall be conclusive absent manifest error. The relevant Borrower or Canadian Borrower shall pay the Administrative Agent for the account of such each Lender, US-Canadian Lender or Issuing Lender the amount shown as due on any such certificate within 10 Business Days 30 days after its receipt of the same. Upon the receipt of any such certificate, the relevant Borrower shall be entitled, in its sole discretion, if any requested Loan has not been made, to cancel its acceptance of the relevant Competitive Bids or to cancel the Competitive Bid Request relating thereto, subject to Section 2.16.
(d) Failure Except as provided in this paragraph, failure on the part of any Lender or US-Canadian Lender, as applicable, to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such Lender's rights or US-Canadian Lender's right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Periodperiod. The protection of this Section 2.14 2.15 shall be available to each Lender and US-Canadian Lender regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, guideline or other change or condition which shall have occurred or been imposed.
(e) Each Lender agrees thatimposed so long as it shall be customary for Lenders or US-Canadian Lenders, as promptly as practicable applicable, affected thereby to comply therewith. No Lender or US-Canadian Lender shall be entitled to compensation under this Section 2.15 for any costs incurred or reductions suffered with respect to any date unless it shall have notified the relevant Borrower or Canadian Borrower that it will demand compensation for such costs or reductions under paragraph (c) above not more than 90 days after it becomes aware the later of the occurrence of an event or the existence of a condition that (i) would cause such date and (ii) the date on which it to incur shall have become aware of such costs or reductions. Notwithstanding any increased cost under other provision of this Section 2.15, Section 2.16, Section 2.21 no Lender or Section 2.24(g) US-Canadian Lender shall demand compensation for any increased cost or (ii) would require reduction referred to above if it shall not at the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 time be the general policy or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office practice of such Lender or US-Canadian Lender to demand such compensation in similar circumstances under comparable provisions of other credit agreements, if as a result thereof any. In the additional monies which would otherwise be required to be paid event any Borrower shall reimburse any Lender or the reduction of amounts receivable by such US-Canadian Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit Canadian Borrower shall reimburse any US-Canadian Lender pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event 2.15 for any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice cost and such Lender or US-Canadian Lender shall thereupon assign subsequently receive a refund in respect thereof, such Lender or US-Canadian Lender, as applicable, shall so notify the relevant Borrower or Canadian Borrower and, upon its Commitmentrequest, any Loans owing will pay to such Borrower or Canadian Borrower the portion of such refund which such Lender and any participations or US-Canadian Lender, as applicable, shall determine in Letters good faith to be allocable to the cost so reimbursed. The covenants contained in this Section 2.15 shall survive the termination of Credit this Agreement and the Notes held by such Lender to such replacement lending institution pursuant to Section 9payment of the Loans and all other amounts payable hereunder.
Appears in 1 contract
Samples: Credit Agreement (Viacom Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after If the date of this Agreement any change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, or (iii) shall impose on any Lender or the London Interbank Market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Loan or Fixed Rate Loan or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the Borrower shall pay such additional amount or amounts as will compensate such Lender for such increase or reduction to such Lender upon demand by such Lender.
(b) If, after the date of this Agreement, any Lender shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, special deposit, insurance or any change therein, after the date hereof in any of the foregoing or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office of such the Lender) 's holding company with any request or directive promulgated after the date hereof 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 the Lender's capital or on the capital of the Lender's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Revolving Loan, including the issuance of any Letter of Credit, made by the Lender to a level below that which such Lender (or its the Lender's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such the Lender's policies or and the policies of its the Lender's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such the Lender in good faith to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate the Lender's holding company for any such reduction suffered.
(b) Notwithstanding any other provision herein, if after the date of this Agreement any change in applicable law or regulation (either by way of changes in existing laws or regulations or the introductions of new laws or regulations) or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall change the basis of taxation of payments to the Lender of the principal of or interest on any LIBOR Borrowing made by the Lender, Fees or other amounts payable hereunder (other than changes in respect of taxes imposed on the net income of the Lender), or shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of or credit extended by the Lender, including without limitation any reserve requirement that may be applicable to "eurocurrency liabilities" under and as defined in Regulation D, or shall impose on the Lender or the London interbank market any other condition affecting this Agreement or any LIBOR Borrowing made by the Lender, and the result of any of the foregoing shall be to increase the cost to the Lender of making or maintaining any LIBOR Borrowing or to reduce the amount of any sum received or receivable by the Lender hereunder or under the Note (in respect of LIBOR Borrowing only), whether of principal, interest or otherwise, by an amount deemed by the Lender in good faith to be material, then, the Borrower will pay to the Lender upon demand such additional amount or amounts as will compensate the Lender for such additional costs incurred or reduction upon demand by such Lendersuffered.
(c) A certificate of a the Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such the Lender or its holding company as specified in paragraph (a) or (b) above, as the case may be, and (ii) setting forth in reasonable detail the calculation of manner in which such amount or amounts referred to in the preceding clause (i), shall have been determined shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate delivered by it within 10 Business Days ten (10) days after its receipt of the same.
(d) Failure on the part of any the Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such the Lender's rights right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Periodperiod. The protection of this Section 2.14 shall be available to each the Lender regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, guideline or other change or condition which shall have occurred or been imposed, provided that if the Lender is compensated for such increased costs or reduction by any Governmental Authority or third party in the event such invalidity or inapplicability is finally determined, then the Lender shall return to the Borrower the respective compensation paid by the Borrower, up to the lesser of such amount as is received by the Lender or such amount as was paid by the Borrower.
(e) Each Without prejudice to the survival of any other agreement contained herein, the agreements and obligations contained in this Section shall survive Termination, provided that the Borrower shall have no further obligation to the Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require unless a certificate setting forth the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender obligation shall have been delivered to by the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof above within ninety (90) calendar days after the Termination Date.
(f) The Lender shall give notification to the Borrower of any event or that any prospective event which will give rise to the operation of paragraphs (a) or (b) of this Section, such notification to be sent within thirty (30) days of the events designated in paragraph (e) hereof have occurred, date of the Borrower may (but subject in public promulgation of the effective date of any such case to the payments required by Section 2.17)law, provided that there shall exist no Default rule, regulation, guidelines or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9change therein.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if If after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or the Issuing Bank of the principal of or interest on any LIBOR Loan or Fixed Rate Eurodollar Loan made by such Lender or any other fees or other amounts payable hereunder (other than (x) changes in respect of taxes imposed on the overall net income of such Lender or the Issuing Bank by the jurisdiction in which such Lender or the Issuing Bank has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, by such Lender or the Issuing Bank (except any Lender, such reserve requirement which is reflected in the Adjusted LIBO Rate) or (iii) shall impose on any such Lender or the Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or the Issuing Bank of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein, or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or the Issuing Bank to be material, then the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or the Issuing Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the date hereof in any such law, rule, regulation, agreement or any change guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or the Issuing Bank or any Lender's or the Issuing Bank's holding company 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, Authority has or would have the effect of reducing the rate of return on such Lender's or the Issuing Bank's capital or on the capital of such Lender's or the LenderIssuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participation in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender (or its the Issuing Bank or such Lender's or the Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration by an amount deemed by such Lender's policies Lender or the policies of its holding companyIssuing Bank to be material, then from time to time the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, with respect to capital adequacy) by an amount deemed by such Lender to be material, then, from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered. Any Lender or Issuing Bank may utilize reasonable averaging and attribution methods in determining any amount or amounts under this paragraph.
(c) A certificate of a Lender or the Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or the Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) aboveabove shall be delivered to the Borrower, as shall set forth in reasonable detail the case may becircumstances giving rise to such certificate and the basis for calculation of the amount or amounts for which compensation is required, and (ii) the calculation shall constitute rebuttable presumptive evidence of such amount or amounts referred to in the preceding clause (i)and, if not rebutted within five Business Days, shall be delivered to the Borrower conclusive and shall be conclusive absent manifest errorbinding. The Borrower shall pay each Lender or the Administrative Agent for the account of such Lender Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection of this Section 2.14 shall be available to each Lender and the Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which shall have occurred or been imposed.
(e) Each Lender agrees that, as or Issuing Bank will promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower and the Administrative Agent of such any event or condition and, to the extent not inconsistent with such Lender's internal policies, of which it has knowledge that will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of entitle such Lender if as a result thereof the additional monies which would otherwise be required or Issuing Bank to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit compensation pursuant to this Section 2.15(any such event, Section 2.16, Section 2.21 a "Compensation Event"). No Lender or Section 2.24(g) would Issuing Bank shall be materially reduced or the taxes or other amounts otherwise payable under entitled to compensation pursuant to this Section 2.15in respect of any Compensation Event for any period of time in excess of 365 days prior to such notice; provided that, Section 2.16if a Compensation Event by its terms is retroactive, Section 2.21 or Section 2.24(g) would such 365-day period shall be materially reduced, and if, as determined increased by such Lender, in its sole discretion, the making, funding or maintaining duration of the retroactive effect of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such LenderCompensation Event.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any Lender, or (iii) shall impose on by any Lender or the Issuing Bank (except any such requirement which is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or the Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or the Issuing Bank of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or the Issuing Bank to be material, then the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or the Issuing Bank shall have determined in good faith that the adoption after the date hereof Closing Date of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the Closing Date in any such law, rule, regulation, agreement or any change guideline (whether or not having the force of law) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or the Issuing Bank or any Lender's or the Issuing Bank's holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, central bank Authority made or comparable agency, issued after the Closing Date has or would have the effect of reducing the rate of return on such Lender's or the Issuing Bank's capital or on the capital of such Xxxxxx's or the LenderIssuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender (or its the Issuing Bank or such Lender's or the Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or the Issuing Bank's policies or and the policies of its such Lender's or the Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or the Issuing Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or the Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or the Issuing Bank or its respective holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender or the Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights or the Issuing Bank's right to demand such compensation; provided that neither any Lender nor the Issuing Bank shall be entitled to compensation under this Section 2.14 for any increased costs or reduction in amounts received reductions incurred or receivable or reduction in return on capital suffered with respect to any date unless such Interest Period Lender or any other Interest Periodthe Issuing Bank, as the case may be, shall have notified the Borrower under paragraph (c) above, not more than 90 days after the later of (i) such date and (ii) the date on which such Lender or Issuing Bank, as applicable, shall have become aware of such costs or reductions. The protection of this Section 2.14 shall be available to each Lender and the Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Credit Agreement (Pacificorp /Or/)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or Issuing Bank of the principal of or interest on any LIBOR Loan or Fixed Rate Eurodollar Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than (x) changes in respect of taxes imposed on the overall net income of such Lender or Issuing Bank by the jurisdiction in which such Lender or Issuing Bank has its principal office or its applicable Lending Office lending office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, by any Lender, Lender or Issuing Bank (iiiexcept any such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall impose on any such Lender or Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or Issuing Bank of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or Issuing Bank to be material, then the Borrower shall will pay to such Lender or Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or Issuing Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the date hereof in any such law, rule, regulation, agreement or any change guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or Issuing Bank or any Lender's or Issuing Bank's holding company with any request or directive issued after the date hereof regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, Authority has or would have the effect of reducing the rate of return on such Lender's or Issuing Bank's capital or on the capital of the such Lender's or Issuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by such Issuing Bank pursuant hereto to a level below that which such Lender (or its Issuing Bank or such Lender's or Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or Issuing Bank's policies or and the policies of its such Lender's or Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or Issuing Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Bank or such Lender's or Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), together with supporting documentation or computations, above shall be delivered to the Borrower and shall be conclusive absent manifest error; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date on which such Lender or Issuing Bank notifies the Borrower in writing of the change giving rise thereto and of its intention to claim compensation therefor; provided further, that if the change giving rise to such increased costs or reductions shall be retroactive, then the 180 day period referred to above shall be extended to include the period of retroactive effect thereof. The Borrower shall pay the Administrative Agent for the account of such Lender or Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights or Issuing Bank's right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Periodcompensation. The protection of this Section 2.14 shall be available to each Lender and Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement December 7, 1993 any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or the Issuing Bank in respect of any Letter of Credit or of the principal of or interest on any LIBOR Eurodollar Loan or Fixed Rate CD Loan made by such Lender or any other fees or other amounts payable hereunder (other than (x) taxes imposed on or measured by the overall net income of such Lender by the jurisdiction in which such Lender has its principal office (or its applicable Lending Office lending office) or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit 56 55 extended by, by such Lender (except any Lender, such reserve requirement which is reflected in the Adjusted LIBO Rate or (iiithe Adjusted CD Rate) or the Issuing Bank or shall impose on any such Lender or the Issuing Bank or the London Interbank Market any other condition affecting this Agreement or any LIBOR Loan Letter of Credit or Fixed Rate Loan the Letter of Credit Exposure or Eurodollar Loans or CD Loans made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender or the Issuing Bank of making or maintaining the Letter of Credit Exposure, any LIBOR Eurodollar Loan or Fixed Rate CD Loan (or, in the case of the Issuing Bank, of making any payment or maintaining the Letter of Credit Commitment) or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or the Issuing Bank to be material, then the Borrower shall will pay to such Lender or the Issuing Bank such additional amount or amounts as will compensate such Lender or the Issuing Bank for such increase additional costs incurred or reduction suffered. Each Lender will use all reasonable efforts to designate a lending office (or a different lending office), so long as such designation is not adverse to such Lender upon demand by in such Lender's sole judgment, if such designation would avoid the need to, or reduce the amount which would otherwise be required to, compensate such Lender for any additional costs incurred or reduction suffered.
(b) If, after the date of this Agreement, If any Lender or the Issuing Bank shall have determined in good faith that the applicability of any law, rule, regulation or guideline adopted pursuant to or arising out of the July 1988 report of the Basic Committee on Banking Regulations and Supervisory Practices entitled "International Convergence of Capital Measurement and Capital Standards", or the adoption after the date hereof December 7, 1993, of any applicable other law, rule, regulation or guideline regarding capital adequacy, or any change therein, in any of the foregoing or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or the Issuing Bank or any Lender's or the Issuing Bank's holding company with any request or directive regarding capital adequacy (whether or not having 57 56 the force of law) of any such Governmental Authorityauthority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or the Issuing Bank's capital or on the capital of such Lender's or the LenderIssuing Bank's holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its the Issuing Bank or such Lender's or the Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or the Issuing Bank's policies or and the policies of its such Lender's or the Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or the Issuing Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or the Issuing Bank such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a each Lender or the Issuing Bank setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender or the Issuing Bank or its holding company as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay each Lender or the Administrative Agent for the account of such Lender Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days after its receipt of the same.
(d) In the event any Lender or the Issuing Bank delivers a certificate pursuant to paragraph (c) above, the Borrower may require, at its expense, such Lender or the Issuing Bank to assign, at par, without recourse (in accordance with Section 10.04) all its interests, rights and obligations hereunder (including, in the case of a Lender, all of its Commitment and the Loans at the time owing to it and the Notes and participations in Letters of Credit held by it) to a financial institution specified by the Borrower (a "Substitute Lender"), provided that (i) such assignment shall not conflict with or violate any law, rule or regulation or order of any court or other Governmental Authority, (ii) the Borrower shall have received the written consent of the Agent and the Issuing Bank 58 57 (other than in the case of an assignment by the Issuing Bank), which consent shall not unreasonably be withheld, to such assignment and (iii) the Borrower shall have paid to the assigning Lender or the Issuing Bank, as applicable, all monies accrued and owing hereunder to it (including pursuant to this Section).
(e) Promptly after any Lender or the Issuing Bank becomes aware of any circumstance which will, in its sole judgment, result in a request for increased compensation pursuant to this Section, such Lender or the Issuing Bank shall notify the Borrower thereof. Failure on the part of any Lender or the Issuing Bank so to notify the Borrower or to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such Lender's rights or the Issuing Bank's right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Periodperiod. The protection of this Section 2.14 shall be available to each Lender and the Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, guideline or other change or condition which shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding i. If any other provision herein, if after the date of this Agreement any change Change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any LenderLender (except any reserve requirement reflected in the Adjusted LIBO Rate); (ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes) and (C) Connection Income Taxes) on its loans, loan principal, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (iii) shall impose on any Lender or the London Interbank Market interbank market any other condition condition, cost or expense (other than Taxes) affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Loans made by such Lender, ; and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making making, converting to, continuing or maintaining any LIBOR Loan or Fixed Rate Loan of maintaining its obligation to make any such Loan, or to reduce the amount of any sum received or receivable by such Lender or other Recipient hereunder (whether of principal, interest or otherwiseany other amount) in respect thereof by an amount deemed in good faith by then, upon request of such Lender to be materialor other Recipient setting forth in reasonable detail such increased costs or reduction, then the Borrower shall will pay to such Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or other Recipient, as the case may be, for such increase additional costs incurred or reduction to suffered.
ii. If any Lender determines that any Change in Law affecting such Lender upon demand by or any lending office of such Lender or such Lender.
(b) If’s holding company, after the date of this Agreementif any, any Lender shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of 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 agencyliquidity requirements, has or would have the effect of reducing the rate of return on such Lender's ’s capital or on the capital of the such Lender's ’s holding company, if any, as a consequence of its obligations hereunder this Agreement, the Commitments of such Lender or the Loans made by such Lender to a level below that which such Lender (or its such Lender’s holding company) company could have achieved but for such applicability, adoption, change or compliance Change in Law (taking into consideration such Lender's ’s policies or and the policies of its such Lender’s holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender to be material), then, then from time to time, upon request of such Lender setting forth in reasonable detail such reduced rate of return, the Borrower shall will pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction upon demand by such Lendersuffered.
(c) iii. A certificate of a Lender setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) above, as the case may be, of this Section and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower and Borrower, shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 10 Business Days 15 days after its receipt of the samethereof.
(d) iv. Failure or delay on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect pursuant to any Interest Period this Section shall not constitute a waiver of such Lender's rights ’s right to demand compensation such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs incurred or reduction in amounts received or receivable or reduction in return on capital with respect reductions suffered more than 90 days prior to the date that such Interest Period or any other Interest Period. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify notifies the Borrower of the Change in Law giving rise to such event increased costs or condition andreductions, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans and of such Lender, or’s intention to claim compensation therefor (except that, if applicable the Change in Law giving rise to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise or reductions is retroactive, then the 90 day period referred to above shall be required extended to be paid in respect include the period of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lenderretroactive effect thereof).
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Credit Agreement (Energy & Exploration Partners, Inc.)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement First Amendment Effective Date any change Change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall:
(i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit deposit, compulsory loan, insurance charge or similar requirement against assets or liabilities (including “eurocurrency liabilities” as defined in Regulation D of the Board) of, deposits with or for the account of, or credit extended or participated in by, any Lender, Lender or LC Issuer;
(iiiii) shall impose on any Lender or LC Issuer or the London Interbank Market interbank market any other condition condition, cost or expense (other than Taxes) affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Loans made by such LenderLender or any Letter of Credit or participations by such Lender therein; or
(iii) subject any Lender or LC Issuer to any Taxes (other than Indemnified Taxes or Excluded Taxes) on its loans, loan principal, letters of credit, commitments or other obligations, or on its deposits, reserves, other liabilities or capital attributable thereto; and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Loan or Fixed Rate Loan to increase the cost to such Lender or any LC Issuer of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or LC Issuer hereunder (whether of principal, interest or otherwise) in respect thereof by an amount reasonably deemed in good faith by such Lender or LC Issuer, as the case may be, to be material, then the Borrower shall pay such additional amount or amounts as will compensate such Lender or LC Issuer, as the case may be, for such increase additional costs or reduction will be paid by the applicable Borrower (or, if such amount is not attributable to any particular Borrower, the Company) to such Lender or LC Issuer upon demand by such Lenderdemand.
(b) If, after the date of this Agreement, If any Lender or LC Issuer shall have determined that any Change in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of such Lender) with any request or directive Law regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, liquidity has or would have the effect of reducing the rate of return on such Lender's capital or on (i) the capital of such Lender or LC Issuer or the Lender's holding companycompany of such Lender or LC Issuer, if anyas the case may be, as a consequence of its obligations hereunder this Agreement, such Lender’s Commitments the Loans made by or participations in Letters of Credit held by such Lender, or the Letters of Credit issued by such LC Issuer, pursuant hereto to a level below that which such Lender (or its LC Issuer or the holding company) company of such Lender or LC Issuer, as the case may be, could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's ’s or LC Issuer’s policies or and the policies of its the holding company, as the case may be, company of such Lender or LC Issuer with respect to capital adequacy) by an amount reasonably deemed by such Lender or LC Issuer, as the case may be, to be material, then, then from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender time such additional amount or amounts as will compensate such Lender or LC Issuer or the holding company of such Lender or LC Issuer for such reduction upon demand will be paid by the applicable Borrower (or, if such Lenderamount is not attributable to any particular Borrower, the Company) to such Lender or LC Issuer, as the case may be.
(c) A certificate of a any Lender or LC Issuer setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender or LC Issuer or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower Company and shall be conclusive absent manifest error. The applicable Borrower (or, if such amount is not attributable to any particular Borrower, the Company) shall pay the Administrative Agent for the account of such Lender or LC Issuer, as the case may be, the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure on the part of any Lender or LC Issuer to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such Lender's rights ’s or LC Issuer’s right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Period. The protection of period; provided, however, that no Lender or LC Issuer shall be entitled to compensation under this Section 2.14 shall be available for any costs incurred or reductions suffered more than 90 days prior to each the date that such Lender regardless of any possible contention of invalidity or inapplicability LC Issuer, as the case may be, notifies the Company of the law, regulation Change in Law giving rise to such increased costs or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans reductions and of such Lender, or’s or LC Issuer’s intention to claim compensation therefor; provided further that, if applicable the Change in Law giving rise to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise or reductions is retroactive, then the 90 day period referred to above shall be required extended to be paid in respect include the period of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lenderretroactive effect thereof.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Credit Agreement (Hartford Financial Services Group Inc/De)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinExcept with respect to Indemnified Taxes and Other Taxes, which shall be governed solely and exclusively by Section 2.21, if after the date of this Agreement Closing Date any change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirementExcluded Taxes), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, or (iii) shall impose on any Lender or the London Interbank Market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan made by such Lender, and the result of any of the foregoing shall be to increase the cost (other than the amount of Taxes, if any) to such Lender of making or maintaining any LIBOR Loan or Fixed Rate Loan or to reduce the amount (other than the amount of Taxes, if any) of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the Borrower shall pay such additional amount or amounts as will compensate such Lender for such increase or reduction to such Lender upon demand by such Lender.
(b) If, after the date of this AgreementClosing Date, any Lender shall have determined in good faith that the adoption after the date hereof Closing Date of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of 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 capital or on the capital of the Lender's holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its holding company) could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or the policies of its holding company, as the case may be, with respect to capital adequacy) by an amount deemed by such Lender to be material, then, from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such reduction upon demand by such Lender.
(c) A certificate of a Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 10 Business Days after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection of this Section 2.14 2.15 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g2.23(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g2.23(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g2.23(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g2.23(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided PROVIDED that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Credit Agreement (Cendant Corp)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change in Applicable any Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of lawLaw) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or the Issuing Bank of the principal of or interest on any LIBOR Eurodollar Loan or Fixed Rate Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than (x) changes in respect of taxes imposed on the overall net income (including without limitation franchise taxes on net income, branch profit taxes and alternate minimum income taxes) of such Lender or the Issuing Bank by the jurisdiction in which such Lender or the Issuing Bank is incorporated or has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any Lender, or (iii) shall impose on by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or the Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan Eurodollar Loans or Fixed Rate Loan Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or the Issuing Bank of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan or increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof , by an amount deemed in good faith by such Lender or the Issuing Bank to be material, then the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or the Issuing Bank shall have determined in good faith that the adoption after the date hereof of any applicable lawLaw, rule, regulation agreement or guideline regarding capital adequacy, or any change thereinafter the date hereof in any such Law, agreement or any guideline (regardless of whether the change in such Law, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or the Issuing Bank or any Lender's or the Issuing Bank's holding company with any request or directive regarding capital adequacy (whether or not having the force of lawLaw) of any such Governmental Authority, central bank or comparable agency, Authority has or would have the effect of reducing the rate of return on such Lender's or the Issuing Bank's capital or on the capital of such Lender's or the LenderIssuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender (or its the Issuing Bank or such Lender's or the Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or the Issuing Bank's policies or and the policies of its such Lender's or the Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or the Issuing Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or the Issuing Bank setting forth in reasonable detail (i) such the basis for computation of the amount or amounts as shall be necessary to compensate such Lender or the Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender or the Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights or the Issuing Bank's right to demand compensation for such compensation; provided, however, that in no event shall the Borrower be obligated to make any payment under this Section 2.13 in respect of increased costs or reduction incurred prior to the period commencing 90 days prior to the date on which demand for compensation in respect of such increased costs is first made. In addition, the Borrower shall not incur liability for additional amounts received or receivable or reduction in return on capital with respect to changes in the basis of taxation described above for periods of time before such Interest Period Lender or Issuing Bank becomes aware of the change in such basis except in the case of any other Interest Periodretroactive application of such a change. The protection of this Section 2.14 shall be available to each Lender and the Issuing Bank regardless of any possible contention of the invalidity or inapplicability of or the lawLaw, regulation agreement, guideline or other change or condition which that shall have occurred or been imposed. Notwithstanding any other provision of this Section, no Lender shall be entitled to demand compensation hereunder in respect of any Competitive Loan if it shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or circumstance giving rise to such demand at the existence time it submitted the Competitive Bid pursuant to which such Loan was made. Change in Legality.hange in Legality
(a) Notwithstanding any other provision of a condition that this Agreement, if, after the date hereof, any change in any Law or in the interpretation thereof by any Governmental Authority charged with the administration or interpretation thereof shall make it unlawful for any Lender to make or maintain any Eurodollar Loan or to give effect to its obligations as contemplated hereby with respect to any Eurodollar Loan, then, by written notice to the Borrower and to the Administrative Agent:
(i) would cause it such Lender may declare that Eurodollar Loans will not thereafter (for the duration of such unlawfulness) be made by such Lender hereunder (or be continued for additional Interest Periods and ABR Loans will not thereafter (for such duration) be converted into Eurodollar Loans), whereupon such Lender shall not submit a Competitive Bid in response to incur a request for a Eurodollar Competitive Loan and any increased cost under this Section 2.15request for a Eurodollar Borrowing (or to convert an ABR Borrowing to a Eurodollar Borrowing or to continue a Eurodollar Borrowing for an additional interest Period) shall, Section 2.16as to such Lender only, Section 2.21 be deemed a request for an ABR Loan (or Section 2.24(g) a request to continue an ABR Loan as such for an additional Interest Period or to convert a Eurodollar Loan into an ABR Loan, as the case may be), unless such declaration shall be subsequently withdrawn; and
(ii) would such Lender may require that all outstanding Eurodollar Loans made by it be converted to ABR Loans, in which event all such Eurodollar Loans shall be automatically converted to ABR Loans as of the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower effective date of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate notice as provided in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(gparagraph (b) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) below. In the event any Lender shall exercise its rights under (i) or (ii) above, all payments and prepayments of principal that would otherwise have delivered been applied to repay the Eurodollar Loans that would have been made by such Lender or the converted Eurodollar Loans of such Lender shall instead be applied to repay the ABR Loans made by such Lender in lieu of, or resulting from the conversion of, such Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice to the Borrower a notice that LIBOR Loans are no longer available from such by any Lender pursuant shall be effective as to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required each Eurodollar Loan made by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify if lawful, on the last day of the Interest Period currently applicable to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations such Eurodollar Loan; in Letters of Credit from the Lender providing all other cases such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters be effective on the date of Credit and receipt by the Notes held by such Lender to such replacement lending institution pursuant to Section 9Borrower.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) It is understood that the cost to each Lender of making or maintaining any of the Eurodollar Loans may fluctuate as a result of the applicability of reserve requirements imposed by the Board at the ratios provided for in Regulation D on the date hereof. The Borrower agrees to pay to each of the Lenders from time to time such amounts as shall be necessary to compensate such Lender for the portion of the cost of making or maintaining Eurodollar Loans resulting from any such reserve requirements provided for in Regulation D as in effect on the date hereof, it being understood that the rates of interest applicable to Eurodollar Loans have been determined on the assumption that no such reserve requirements exist or will exist and that such rates do not reflect costs imposed on the Lenders in connection with such reserve requirements.
(b) Notwithstanding any other provision herein, if after the date of this Agreement any change in Applicable Law applicable law or regulation (including, without limitation, Regulation D) or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Eurodollar Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than (x) changes in respect of taxes imposed on the overall net income of such Lender and franchise taxes imposed on it by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify modify, or deem applicable any reserve, special deposit deposit, or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any by such Lender, or (iii) shall impose on any such Lender or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Eurodollar Loan made by such Lender, Lender and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Loan or Fixed Rate Eurodollar Loan or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest interest, or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then then, to the extent not otherwise being reimbursed under Section 2.19 hereof, the Borrower shall will pay to such Lender, upon demand such additional amount or amounts as will compensate such Lender Lender, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(bc) If, after the date of this Agreement, If any Lender shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation regulation, or guideline regarding capital adequacy, or any change thereinin any existing law, rule, regulation, or any change guideline regarding capital adequacy or in the interpretation or administration thereof of any of the foregoing by any Governmental Authority, central bank bank, or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or any Lender’s holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authorityauthority, central bank bank, or comparable agency, has or would have the effect of reducing the rate of return on such Lender's ’s capital or on the capital of the such Lender's ’s holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made by such Lender pursuant hereto, to a level below that which such Lender (or its holding company) could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or the policies of its ’s holding company, as the case may be, could have achieved but for such adoption, change, or compliance (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy) by an amount deemed by such Lender to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such reduction upon demand by such Lender.
(c) A certificate of a Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 10 Business Days after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in ’s holding company for any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9reduction suffered.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinherein (but subject to paragraph (d) below and Section 2.20), if after the date of this Agreement any Lender or Fronting Bank becomes a Lender or Fronting Bank hereunder any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or any Fronting Bank, as applicable, of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other Letter of Credit or participation therein or any fees or other amounts payable hereunder (other than changes in respect of Taxes referred to in clause (xa) taxes imposed on or (b) of the overall net income definition of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office Excluded Taxes) or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any Lender, by such Lender or (iii) Fronting Bank or shall impose on any Lender such Lender, such Fronting Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR such Loan or Fixed Rate Loan to increase the cost to such Lender or such Fronting Bank of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or such Fronting Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the Borrower shall Borrowers will pay to such Lender or such Fronting Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Fronting Bank for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, any Lender shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of 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 capital or on the capital of the Lender's holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its holding company) could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or the policies of its holding company, as the case may be, with respect to capital adequacy) by an amount deemed by such Lender to be material, then, from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such reduction upon demand by such Lender.
(c) A certificate of a Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 10 Business Days after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement Closing Date any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, by such Lender or the Issuing Bank (except any Lender, such reserve requirement that is reflected in the Adjusted LIBO Rate or (iiiin the Alternate Base Rate) or shall impose on any such Lender or the Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or the Issuing Bank of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein, or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or the Issuing Bank to be material, then the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, following receipt of a certificate of such Lender to such effect in accordance with paragraph (c) below such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or the Issuing Bank shall have determined in good faith that the adoption after the date hereof Closing Date of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the Closing Date in any such law, rule, regulation, agreement or any change guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or the Issuing Bank or any Lender's or the Issuing Bank's holding company with any request or directive regarding capital adequacy issued under any law, rule, regulation or guideline (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, Authority has or would have the effect of reducing the rate of return on such Lender's or the Issuing Bank's capital or on the capital of such Lender's or the LenderIssuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made by such Lender or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender (or its the Issuing Bank or such Lender's or the Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or the Issuing Bank's policies or and the policies of its such Lender's or the Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or the Issuing Bank to be material, then, then from time to time, time the Borrower shall will pay to such Lender or the Administrative Agent for Issuing Bank, as the account case may be, following receipt of a certificate of such Lender to such effect in accordance with paragraph (c) below, such additional amount or amounts as will shall compensate such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a any Lender or the Issuing Bank setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender or the Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as and setting forth in reasonable detail an explanation of the case may be, and basis of requesting such compensation in accordance with paragraph (iia) the calculation of such amount or amounts referred to in the preceding clause (i)b) above, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall will pay the Administrative Agent for the account of such Lender or the Issuing Bank the amount shown as due on any such certificate delivered by such Lender or the Issuing Bank within 10 Business Days days after its the Borrower's receipt of the samesame unless the Borrower has notified such Lender or the Issuing Bank, as the case may be, that it intends to exercise its rights under the next succeeding sentence. The Borrower, at its expense, at any time within 180 days after the delivery of such certificate, so long as no Event of Default shall have occurred and be continuing, may require such Lender or the Issuing Bank, as the case may be, to assign in accordance with the provisions of Section 9.04, at par plus accrued interest, without recourse or warranty and pursuant to an Assignment and Acceptance, its rights and obligations hereunder to a financial institution specified by the Borrower that is willing to accept an assignment of such rights and obligations on the terms hereof and that is reasonably acceptable to the Administrative Agent; provided, however, that (i) such assignment shall not conflict with or violate any law or regulation applicable to or binding on such Lender or the Issuing Bank, as the case may be, (ii) the Borrower shall have paid to the assigning Lender all amounts (other than interest) accrued and owing hereunder to it (including amounts accrued and owing pursuant to this Section 2.13) and (iii) the assignee Lender shall have executed and delivered an Assignment and Acceptance in accordance with Section 9.04. Notwithstanding anything in this Section 2.13(c) to the contrary, the Borrower shall not be entitled to require an assignment under this Section 2.13(c) with respect to any Lender or the Issuing Bank if, prior to any such requirement, such Lender or the Issuing Bank, as the case may be, shall have taken any action under Section 2.13(e) so as to eliminate the continued incurrence of the costs in respect of which payment was demanded.
(d) Failure on the part of any Lender or the Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such Lender's rights or the Issuing Bank's right to demand such compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Periodperiod, except that none of any Lender or the Issuing Bank shall be entitled to compensation under this Section 2.13 for any costs incurred or reduction suffered with respect to any date unless such Lender or the Issuing Bank, as applicable, shall have notified the Borrower that it will demand compensation for such costs or reductions under paragraph (c) above, not more than six months after the later of (i) such date and (ii) the earlier of the date on which such Lender or the Issuing Bank, as applicable, shall have become aware or should have become aware of such costs or reduction. The protection of this Section 2.14 2.13 shall be available to each Lender and the Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees thatwill, at the request of the Borrower, either designate a different lending office or transfer its Loans to an Affiliate of such Lender if such designation or transfer, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that case may be, (i) would cause it avoid the need for, or minimize the amount of, any compensation to incur any increased cost under which such Lender is entitled pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or 2.13 and (ii) would require not, in the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans sole judgment of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would be otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due disadvantageous to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9material respect.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any the Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) except for changes in respect of taxes imposed on the overall net income of such the Lender imposed by the jurisdiction in which such Lender has its the Lender's principal executive office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmentlocated), or other governmental charge that would not have been imposed but for shall result in the failure imposition, modification or applicability of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any by the Lender, or (iii) shall impose result in the imposition on any the Lender or the London Interbank Market interbank market of any other condition affecting this Agreement Agreement, the Commitment, any Letter of Credit or any LIBOR Loan or Fixed Rate Loan made by such Lender(other than an ABR Loan), and the result of any of the foregoing shall be to increase the cost to such the Lender of maintaining any Letter of Credit or making or maintaining any LIBOR Loan or Fixed Rate Loan (other than an ABR Loan) or to reduce the amount of any sum received or receivable by such the Lender hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such the Lender to be material, then the Borrower shall shall, upon receipt of the notice and certificate provided for in Section 2.12(c), promptly pay to the Lender such additional amount or amounts as will compensate such the Lender for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after If the date of this Agreement, any Lender shall have determined in good faith that the adoption of any law, rule, regulation or guideline arising out of the July 1988 report of the Basle Committee on Banking Regulations and Supervisory Practices entitled "International Convergence of Capital Measurement and Capital Standards," or the adoption after the date hereof of any applicable other law, rule, regulation or guideline regarding capital adequacy, or any change therein, in any of the foregoing or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any the Lender (or any Lending Office of such the Lender) 's holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authorityauthority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such the Lender's capital or on the capital of the Lender's holding company, if any, as a consequence of its obligations hereunder this Agreement, the Commitment, any Letter of Credit or any Loan made by the Lender pursuant hereto to a level below that which such the Lender (or its the Lender's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such the Lender's policies or and the policies of its the Lender's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such the Lender to be material, then, then from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender time such additional amount or amounts as will compensate such the Lender for any such reduction upon demand suffered will be paid by such the Borrower to the Lender.
(c) A certificate of a the Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such the Lender or its holding company as specified in paragraph subsection (a) or (b) above, as and containing an explanation, in reasonable detail, of the case may be, and (ii) the calculation of manner in which such amount or amounts referred to in the preceding clause (i)shall have been determined, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same. The Lender shall give prompt notice to the Borrower of any event of which it has knowledge, occurring after the date hereof, that it has determined will require compensation by the Borrower pursuant to this Section; provided, however, that failure by the Lender to give such notice shall not constitute a waiver of the Lender's right to demand compensation hereunder.
(d) Failure on the part of any the Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such the Lender's rights right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Periodperiod; provided, however, that the Lender shall not be entitled to compensation under this Section 2.12 for any costs incurred or reductions suffered with respect to any date unless it shall have notified the Borrower that it will demand compensation for such costs or reductions under subsection (c) above not more than 90 days after the later of (i) such date and (ii) the date on which it shall have become aware of such costs or reductions. The protection of this Section 2.14 shall be available to each the Lender regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Credit Agreement (Txu Corp /Tx/)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change Change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall
(i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with with, or for the account of, or credit extended by, any LenderLender or any Issuing Bank, except any such reserve requirement that is reflected in the Adjusted LIBORLIBO Rate, the EURIBO Rate, the Discount Rate or the Bank Bill Rate;
(ii) subject any Lender or any Issuing Bank to any Taxes (other than (A) Indemnified Taxes and (B) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) shall impose on suchany Lender of theor any Lender Issuing Bank or the London Interbank Market any applicable interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Loans made by such Lender or any Letter of Credit or participation therein (other than any change to the basis or rate of taxation applicable to any Lender), and the result of any of the foregoing shall be to increase the cost to such Lender or such Issuing Bank of making or maintaining any LIBOR Loan or Fixed Rate Loan or increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or such Issuing Bank to be materialmaterial (after taking into account the last sentence of the definition of the term “Adjusted LIBO Rate”, if applicable), then the Borrower shall applicable Borrowers will pay such additional amount or amounts as will compensate such Lender for such increase or reduction to such Lender upon demand by or such Lender.
(b) If, after the date of this Agreement, any Lender shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of 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 capital or on the capital of the Lender's holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its holding company) could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or the policies of its holding companyIssuing Bank, as the case may be, with respect to capital adequacy) by an amount deemed by such Lender to be material, then, from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts (without duplication of amounts paid by the Borrowers pursuant to Section 2.20) as will compensate such Lender for or such reduction upon demand by such Lender.
(c) A certificate of a Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender as specified in paragraph (a) or (b) aboveIssuing Bank, as the case may be, and (ii) the calculation of for such amount additional costs incurred or reduction suffered; provided that such amounts referred to in the preceding clause (i), shall be delivered proportionate and non-discriminatory relative to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of amounts that such Lender the amount shown as due on any or Issuing Bank charges borrowers or account parties for such certificate within 10 Business Days after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction additional amounts incurred in amounts received or receivable or reduction in return on capital connection with respect to any Interest Period shall not constitute a waiver of such Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, substantially similar facilities as determined by such Lender, Lender or Issuing Bank acting in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lendergood faith exercising reasonable credit judgment.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Credit Agreement (Cbre Group, Inc.)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, or (iii) shall impose on any Lender or the London Interbank Market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Loan or Fixed Rate Loan or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the Borrower shall pay such additional amount or amounts as will compensate such Lender for such increase or reduction to such Lender upon demand by such Lender.
(b) If, after the date of this Agreement, any Lender shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of 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 capital or on the capital of the Lender's holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its holding company) could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or the policies of its holding company, as the case may be, with respect to capital adequacy) by an amount deemed by such Lender to be material, then, from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such reduction upon demand by such Lender.
(c) A certificate of a Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 10 Business Days after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.,
Appears in 1 contract
Samples: Credit Agreement (Cendant Corp)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement there is adopted any new law, rule or regulation or any change in Applicable Law applicable law or regulation or in the interpretation interpretation, promulgation, implementation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special special-deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, by any Lender, Lender or (iii) shall impose on any Lender or the London Interbank Market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan made by such LenderSOFR Loan, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Loan or Fixed Rate SOFR Loan or to reduce the amount of any sum received or receivable by such Lender hereunder or under any Notes (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the Borrower shall will pay to such Lender upon demand such additional amount or amounts as will compensate such Lender for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender shall have determined that the applicability of any law, rule, regulation, agreement or guideline adopted after the date hereof regarding capital adequacy or liquidity requirements, or any change in good faith that any of the foregoing or the adoption after the date hereof of any applicable change in any law, rule, regulation regulation, agreement or guideline regarding capital adequacy, existing on the date hereof or any change therein, or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office of such lending office thereof) or any Lender) ’s holding company with any request or directive regarding capital adequacy or liquidity requirements (whether or not having the force of law) of any such Governmental Authorityauthority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's ’s capital or on the capital of the such Lender's ’s holding company, if any, as a consequence of its obligations hereunder with respect to this Agreement or any Loan to a level below that which such Lender (or its such Lender’s holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's ’s policies or and the policies of its such Lender’s holding company, as the case may be, company with respect to capital adequacyadequacy or liquidity) by an amount deemed by such Lender to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered. It is acknowledged that this Agreement is being entered into by the Lenders on the understanding that the Lenders will not be required to maintain capital against their obligations to make Loans under currently applicable laws, regulations and regulatory guidelines. In the event that any Lender shall be advised by any Governmental Authority, or shall otherwise determine on the basis of pronouncements of any Governmental Authority, that such understanding is incorrect, it is agreed that each such Lender will be entitled to make claims under this paragraph based upon demand by such Lendermarket requirements prevailing on the date hereof for commitments under comparable credit facilities against which capital is required to be maintained.
(c) A certificate of a Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender or such Lender’s holding company as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of manner in which such amount or amounts referred to in Lender has determined the preceding clause (i)same, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same, or such later date as such Lender may agree in writing (in its sole discretion).
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such Lender's rights ’s right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Periodperiod. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, guideline or other change or condition which shall have occurred or been imposed.
(e) Each Lender agrees thatFor purposes of this Agreement, as promptly as practicable notwithstanding anything in this Agreement to the contrary, the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all rules, regulations, interpretations, agreements, guidelines, directives and requests in connection therewith are deemed to have been adopted, and to have gone into effect, after it becomes aware the date of this Agreement, regardless of the occurrence of an event date on which the same were actually adopted or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lenderwent into effect.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Credit Agreement (Avista Corp)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender Bank or Issuing Bank of the principal of or interest on any LIBOR Eurodollar Loan or Fixed Rate Loan made by such Lender Bank or any Fees or other fees or amounts payable hereunder (other than (x) changes in respect of taxes imposed on the overall net income of such Lender Bank or Issuing Bank by the jurisdiction in which such Lender Bank or Issuing Bank has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, by any Lender, Bank or (iii) Issuing Bank or shall impose on any Lender such Bank or Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan Eurodollar Loans or Fixed Rate Loan Loans made by such LenderBank or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender Bank or Issuing Bank of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan or increase the cost to any Bank or Issuing Bank of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum sum, received or receivable by such Lender Bank or Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender Bank or Issuing Bank, in its reasonable judgment, to be material, then the relevant Borrower shall will pay to such Bank or Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender Bank or Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) IfIf any Bank or Issuing Bank shall have determined, after the date hereof, that the applicability of this Agreementany law, any Lender shall have determined in good faith that rule, regulation, agreement or guideline adopted pursuant to or arising out of the July 1988 report of the Basle Committee on Banking Regulations and Supervisory Practices entitled "International Convergence of Capital Measurement and Capital Standards", or the adoption after the date hereof of any applicable other law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinin any of the foregoing (regardless of whether such change in such law, rule, regulation, agreement or any change guideline has been adopted) or in the interpretation or administration thereof of any of the foregoing by any Governmental Authoritygovernmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender Bank (or any Lending Office lending office of such LenderBank) or Issuing Bank or any Bank's or Issuing Bank's holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authorityauthority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such LenderBank's or Issuing Bank's capital or on the capital of the Lendersuch Bank's or Issuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Bank pursuant hereto or any Letter of Credit issued by such Issuing Bank pursuant hereto to a level below that which such Lender (Bank or its Issuing Bank or such Bank's or Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such LenderBank's or Issuing Bank's policies or and the policies of its such Bank's or Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender Bank or Issuing Bank to be material, then, then from time to time, time the relevant Borrower shall pay to such Bank or Issuing Bank, as the Administrative Agent for the account of such Lender case may be, such additional amount or amounts as will compensate such Lender Bank or Issuing Bank or such Bank's or Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender each Bank or Issuing Bank setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender Bank or Issuing Bank or its holding company as specified in paragraph (a) or (b) above, as the case may be, and (ii) an explanation in reasonable detail of the calculation of manner in which such amount or amounts referred to in the preceding clause (i), shall have been determined shall be delivered to the relevant Borrower and shall be conclusive absent manifest error. The relevant Borrower shall pay the Administrative Agent for the account of such Lender each Bank or Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure Except as provided in this Section 2.13, failure on the part of any Lender Bank or Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such LenderBank's rights or Issuing Bank's right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Periodperiod. The protection of this Section 2.14 2.13 shall be available to each Lender Bank and Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, guideline or other change or condition which shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable . No Bank or Issuing Bank shall be entitled to compensation under this Section 2.13 for any costs incurred or reductions suffered with respect to any date unless it shall have notified the relevant Borrower that it will demand compensation for such costs or reductions not more than 180 days after it becomes aware the later of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or such date and (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), date on which it will use reasonable efforts to notify the Borrower shall have become aware of such event costs or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lenderreductions.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Competitive Advance and Revolving Credit Facilities Agreement (Great Atlantic & Pacific Tea Co Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Restated Credit Agreement, if after the date of this Restated Credit Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or the Issuing Bank of the principal of or interest on any LIBOR Loan or Fixed Rate Eurodollar Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than (x) changes in respect of Excluded Taxes and taxes imposed on the overall net income of such Lender by the jurisdiction described in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmentSection 2.20), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any Lender, or (iii) shall impose on by any Lender or the issuance of Letters of Credit by the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or the Issuing Bank or the London Interbank Market interbank market any other condition affecting this Restated Credit Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan increase the cost to any Lender or the Issuing Bank of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise) ), in respect thereof each case by an amount deemed in good faith by such Lender or the Issuing Bank, as the case may be, to be material, then the Borrower shall Borrowers agree to pay to such Lender or the Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or the Issuing Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change thereinafter the date hereof in any such law, rule, regulation or any change guideline (whether such law, rule, regulation or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or the Issuing Bank or any Lender's or the Issuing Bank's holding company with any request or directive regarding capital adequacy issued or adopted after the date hereof (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, Authority has or would have the effect of reducing the rate of return on such Lender's or the Issuing Bank's capital or on the capital of such Lender's or the LenderIssuing Bank's holding company, if any, as a consequence of its obligations hereunder this Restated Credit Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender (or its the Issuing Bank or such Lender's or the Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or the Issuing Bank's policies or and the policies of its such Lender's or the Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or the Issuing Bank to be material, then, then from time to time, time the Borrower shall Borrowers agree to pay to the Administrative Agent for the account of such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or the Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or the Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, above and (ii) a reasonably detailed explanation of the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower Borrowers and shall be conclusive absent manifest error. The Borrower Borrowers shall pay the Administrative Agent for the account of such Lender or the Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights or the Issuing Bank's right to demand compensation such compensation, provided that the Borrowers shall not be required to compensate a Lender or the Issuing Bank pursuant to this Section for any increased costs or reduction in amounts received reductions incurred more than 270 days prior to the date that such Lender or receivable or reduction in return on capital with respect the Issuing Bank, as the case may be, notifies the Parent Borrower of the event giving rise to such Interest Period increased costs or any other Interest Periodreductions and of such Lender's or the Issuing Bank's intention to claim compensation therefor. The protection of this Section 2.14 shall be available to each Lender and the Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each ; provided, however, that the Borrowers shall be entitled to reimbursement of any compensation paid to any Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost Issuing Bank under this Section 2.15, Section 2.16, Section 2.21 for costs that are ultimately reimbursed or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due credited to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9Issuing Bank.
Appears in 1 contract
Samples: Credit Agreement (Lifestyle Furnishings International LTD)
Reserve Requirements; Change in Circumstances. (a) ---------------------------------------------- Notwithstanding any other provision herein, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or Issuing Bank of the principal of or interest on any LIBOR Eurocurrency Loan, Eurodollar Loan, CD Loan or Fixed Rate Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than (x) changes in respect of taxes imposed on the overall net income of such Lender or Issuing Bank by the any jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxesthereof) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, by such Lender or such Issuing Bank (except any Lendersuch reserve requirement which is already reflected in the definition of the applicable Rate), or (iii) shall impose on any such Lender or such Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Eurocurrency Loan, Eurodollar Loan, CD Loan or Fixed Rate Loan made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or Issuing Bank of making or maintaining any LIBOR Eurocurrency Loan, Eurodollar Loan, CD Loan or Fixed Rate Loan or increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or such Issuing Bank to be material, then the Borrower shall pay to such Lender or such Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender for or such increase or reduction to such Lender upon demand by such Lender.
(b) If, after the date of this Agreement, any Lender shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of 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 capital or on the capital of the Lender's holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its holding company) could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or the policies of its holding companyIssuing Bank, as the case may be, with respect to capital adequacy) by an amount deemed by such Lender to be material, then, from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount costs incurred or amounts as will compensate such reduction suffered. Notwithstanding the foregoing, no Lender for such reduction upon demand by such Lender.
(c) A certificate of a Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary entitled to compensate such Lender as specified in request compensation under this paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 10 Business Days after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver Competitive Loan if it should have been aware of such Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect the change giving rise to such Interest Period or any other Interest Period. The protection request at the time of this Section 2.14 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability submission of the law, regulation or condition Competitive Bid pursuant to which such Competitive Loan shall have been imposedmade.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or the Issuing Bank of the principal of or interest on any LIBOR Loan or Fixed Rate Eurodollar Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than changes in respect of Taxes or Other Taxes (xas each such term is defined in Section 2.20(a)) and taxes imposed on expressly excluded from the overall net income definition of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein term "Taxes" pursuant to clause (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirementi), (ii) or (iii) of Section 2.20(a)), or shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any Lender, or (iii) shall impose on by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or the Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or the Issuing Bank of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or the Issuing Bank to be material, then the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or the Issuing Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the date hereof in any such law, rule, regulation, agreement or any change guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or the Issuing Bank or any Lender's or the Issuing Bank's holding company 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, Authority has or would have the effect of reducing the rate of return on such Lender's or the Issuing Bank's capital or on the capital of such Lender's or the LenderIssuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender (or its the Issuing Bank or such Lender's or the Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or the Issuing Bank's policies or and the policies of its such Lender's or the Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or the Issuing Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or the Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or the Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender or the Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights or the Issuing Bank's right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Periodcompensation. The protection of this Section 2.14 shall be available to each Lender and the Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Credit Agreement (PSF Holdings LLC)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or the Issuing Bank of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than (x) changes in respect of taxes imposed on the overall net income of such Lender or the Issuing Bank by the jurisdiction in which such Lender or the Issuing Bank has its principal office or its applicable Lending Office by any state of the United States or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any Lender, or (iii) shall impose on by any Lender or the London Interbank Market Issuing Bank (except any such reserve requirement that is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or the Issuing Bank or the applicable interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or the Issuing Bank of making or maintaining any LIBOR Loan or Fixed Rate Loan increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender (or Affiliate or parent thereof which fairly allocates any such increase to the Lender) or the Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or the Issuing Bank to be material, then the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such increase additional costs actually incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or the Issuing Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the date hereof in any such law, rule, regulation, agreement or any change guideline or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority (including the National Association of Insurance Commissioners) charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or the Issuing Bank or any Lender's or the Issuing Bank's holding company 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, Authority has or would have the effect of reducing the rate of return on such Lender's or the Issuing Bank's capital or on the capital of such Lender's or the LenderIssuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender (or its the Issuing Bank or such Lender's or the Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or the Issuing Bank's policies or and the policies of its such Lender's or the Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or the Issuing Bank to be material, then, from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or the Issuing Bank setting forth in reasonable detail (i) such the circumstances requiring the payment of compensation, the calculations with respect thereto, and the amount or amounts as shall be necessary to compensate such Lender or the Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender or the Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights or the Issuing Bank's right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Periodcompensation. The protection of this Section 2.14 2.13 shall be available to each Lender and the Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) . In the event any Lender or the Issuing Bank ever receives a refund from any applicable Governmental Authority of any amount paid by the Borrower on account of the provisions of this Section 2.13, the applicable Lender or Issuing Bank, as the case may be, shall have delivered repay those refunded amounts to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9Borrower.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement Restatement Closing Date any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or any Issuing Bank of the principal of or interest on any LIBOR Eurocurrency Loan or A/C Fronted Fixed Rate Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than (x) changes in respect of taxes imposed on the overall net income of such Lender or such Issuing Bank by the jurisdiction in which such Lender or such Issuing Bank has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended byby any Lender or any Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate, any Lenderthe Bank Xxxx Rate or the Italian Fixed Rate, as the case may be) or (iii) shall impose on any such Lender or such Issuing Bank or the London Interbank Market interbank market (or other relevant interbank market) any other condition affecting this Agreement or any LIBOR Loan Eurocurrency Loans or A/C Fronted Fixed Rate Loan Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or such Issuing Bank of making or maintaining any LIBOR Eurocurrency Loan or A/C Fronted Fixed Rate Loan or increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or such Issuing Bank to be material, then the Borrower shall Borrowers will pay to such Lender or such Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or such Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or any Issuing Bank shall have determined in good faith that the adoption after the date hereof Restatement Closing Date of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the Restatement Closing Date in any such law, rule, regulation, agreement or any change guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or any Issuing Bank or any Lender's or any Issuing Bank's holding company 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, Authority has or would have the effect of reducing the rate of return on such Lender's or such Issuing Bank's capital or on the capital of the such Lender's or such Issuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by such Issuing Bank pursuant hereto to a level below that which such Lender (or its such Issuing Bank or such Lender's or such Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or such Issuing Bank's policies or and the policies of its such Lender's or such Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or such Issuing Bank to be material, then, then from time to time, time the Borrower Borrowers shall pay to the Administrative Agent for the account of such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender's or such Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or an Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or such Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower Borrowers and shall be conclusive absent manifest error. The Borrower Borrowers shall pay the Administrative Agent for the account of such Lender or such Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or any Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights or such Issuing Bank's right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Periodcompensation. The protection of this Section 2.14 shall be available to each Lender and each Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Credit Agreement (Terex Corp)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any Lender, or (iii) shall impose on by any Lender or the Issuing Bank or shall impose on such Lender or the Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such LenderLender or the Letter of Credit or participations therein, and the result of any of the foregoing shall be to increase the cost to such Lender or the Issuing Bank of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan increase the cost to any Lender of issuing or maintaining the Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or the Issuing Bank to be material, then the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or the Issuing Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the date hereof in any such law, rule, regulation, agreement or any change guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or the Issuing Bank or any Lender's or the Issuing Bank's holding company 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, Authority has or would have the effect of reducing the rate of return on such Lender's or the Issuing Bank's capital or on the capital of such Lender's or the LenderIssuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in the Letter of Credit purchased by such Lender pursuant hereto or the Letter of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender (or its the Issuing Bank or such Lender's or the Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or the Issuing Bank's policies or and the policies of its such Lender's or the Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or the Issuing Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or the Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or the Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender or the Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights or the Issuing Bank's right to demand such compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Periodperiod, except that none of any Lender or the Issuing Bank shall be entitled to compensation under this Section 2.14 for any costs incurred or reductions suffered with respect to any date unless such Lender or the Issuing Bank, as applicable, shall have notified the Borrower that it will demand compensation for such costs or reductions under subsection (c) above, not later than 180 days after such date. The protection of this Section 2.14 shall be available to each Lender and the Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Credit Agreement (Ispat Inland Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if If after the date of this Agreement (or as provided in the last sentence of this Section 2.08(a)) any adoption, issuance or change in Applicable Law applicable law, rule or regulation regulation, guideline, request or directive or in the interpretation or administration thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof (whether or not having the force of lawlaw but with respect to which similarly situated banks generally comply) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest impose on any LIBOR Loan or Fixed Rate Loan made by such Lender Bank or any other fees or amounts payable hereunder Issuing Bank any Taxes (other than (xIndemnified Taxes and Excluded Taxes) taxes imposed on the overall net income its loans, loan principal, letters of such Lender by the jurisdiction in which such Lender has its principal office credit, commitments or other obligations, or its applicable Lending Office deposits, reserves, other liabilities or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement)capital attributable thereto, (ii) shall impose, modify or deem applicable any reserve, special deposit deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, Bank or any Issuing Bank or (iii) shall impose on any Lender Bank or the London Interbank Market any Issuing Bank any other cost or condition (other than Taxes), however denominated, affecting this Agreement or any LIBOR Loan or Fixed Rate Loan made by such LenderBank or any Letter of Credit issued by such Issuing Bank or any participations therein (any change referred to in any of the preceding clauses (i), (ii), or (iii) being called an “Increased Cost Change”), and the result of any of the foregoing shall be to increase the cost to such Lender Bank or Issuing Bank of making or maintaining any LIBOR Loan (or Fixed Rate Loan maintaining a Revolving Credit Commitment) or issuing or maintaining any Letter of Credit (or maintaining its obligation to issue Letters of Credit) or to reduce the amount of any sum received or receivable by such Lender Bank or Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender Bank or Issuing Bank to be material, then the Borrower shall pay then, subject to Section 2.08(d), such additional amount or amounts as will compensate such Lender Bank or Issuing Bank for such increase or reduction will be paid by the Company to such Lender upon demand Bank or Issuing Bank as provided in Section 2.08(c). Any such amount determined pursuant to this Section 2.08(a) shall be computed on the basis of the net effect of any Increased Cost Changes incurred by such Lender.
Bank or Issuing Bank from time to time after the Effective Date of this Agreement. For all purposes of this Section 2.08, (bx) Ifthe Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Regulations and Supervisory Practices (or any successor similar authority) or the United States or foreign financial regulatory authorities, in each case pursuant to Basel III, shall in each case, if they shall have any of the effects referred to in clauses (i), (ii) or (iii) of this Section 2.08(a), be deemed to be an “Increased Cost Change”, whether enacted, adopted, promulgated or issued before or after the date of this Agreement, any Lender shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of 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 capital or on the capital of the Lender's holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its holding company) could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or the policies of its holding company, as the case may be, with respect to capital adequacy) by an amount deemed by such Lender to be material, then, from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such reduction upon demand by such Lender.
(c) A certificate of a Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 10 Business Days after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, by any Lender, Lender or any Issuing Bank (iiiexcept any such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall impose on any such Lender or such Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or such Issuing Bank of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or such Issuing Bank to be material, then the Borrower shall will pay to such Lender or such Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or such Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or any Issuing Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the date hereof in any such law, rule, regulation, agreement or any change guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or any Issuing Bank or any Lender's or any Issuing Bank's holding company 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, Authority has or would have the effect of reducing the rate of return on such Lender's or such Issuing Bank's capital or on the capital of the such Lender's or such Issuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by such Issuing Bank pursuant hereto to a level below that which such Lender (or its such Issuing Bank or such Lender's or such Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or such Issuing Bank's policies or and the policies of its such Lender's or such Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or such Issuing Bank to be material, then, material then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender's or such Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or an Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or such Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender or such Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or any Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights or such Issuing Bank's right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Periodcompensation. The protection of this Section 2.14 shall be available to each Lender and each Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or Issuing Bank of the principal of or interest on any LIBOR Loan or Fixed Rate Eurodollar Revolving Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than (x) changes in respect of taxes imposed on the overall net income of such Lender or Issuing Bank by the jurisdiction in which such Lender or Issuing Bank has either its principal office or its applicable Lending Office lending office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, by any Lender, Lender or Issuing Bank (iiiexcept any such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall impose on any such Lender or Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Revolving Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or Issuing Bank of making or maintaining any LIBOR Eurodollar Revolving Loan or Fixed Rate Loan increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed determined in good faith by such Lender or Issuing Bank to be material, then the Borrower shall will pay to such Lender or Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or Issuing Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the date hereof in any such law, rule, regulation, agreement or any change guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or Issuing Bank or any Lender’s or Issuing Bank’s holding company 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, Authority has or would have the effect of reducing the rate of return on such Lender's ’s or the Issuing Bank’s capital or on the capital of the such Lender's ’s or Issuing Bank’s holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by such Issuing Bank pursuant hereto to a level below that which such Lender (or its Issuing Bank or such Lender’s or Issuing Bank’s holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's ’s or Issuing Bank’s policies or and the policies of its such Lender’s or Issuing Bank’s holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or Issuing Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to together with an explanation in the preceding clause (i)reasonable detail, shall be delivered to the Borrower Borrower. In determining any additional amounts owing under this Section 2.14, each Lender or Issuing Bank will act reasonably and shall be conclusive in good faith and will use averaging and attribution methods which are reasonable; provided that such Lender’s or Issuing Bank’s determination of compensation owing under this Section 2.14 shall, absent manifest error, unreasonableness or bad faith, be final and conclusive and binding on all parties hereto. The Borrower shall pay the Administrative Agent for the account of such Lender or Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days 15 days after its receipt of the same; provided that if the Borrower shall reasonably dispute such amount, the amount due shall be paid within three Business Days after such dispute is resolved.
(d) Failure or delay on the part of any Lender or Issuing Bank to demand compensation for any increased costs or reduction reductions in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights ’s or Issuing Bank’s right to demand compensation such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section for any increased costs or reduction reductions incurred more than 90 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the change in amounts received law or receivable or reduction in return on capital with respect other circumstance giving rise to such Interest Period increased costs or any reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the change in law or other Interest Periodcircumstance giving rise to such increased costs or reductions is retroactive, then the 90 day period referred to above shall be extended to include the period of retroactive effect thereof. The protection of this Section 2.14 shall be available to each Lender and Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Credit Agreement (Alpharma Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, or (iii) shall impose on any Lender or the London Interbank Market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Loan or Fixed Rate Loan or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the Borrower shall pay such additional amount or amounts as will compensate such Lender for such increase or reduction to such Lender upon demand by such Lender.
(b) If, after the date of this Agreement, any Lender shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of 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 capital or on the capital of the Lender's holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its holding company) could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or the policies of its holding company, as the case may be, with respect to capital adequacy) by an amount deemed by such Lender to be material, then, from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such reduction upon demand by such Lender.
(c) A certificate of a Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 10 Business Days after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g2.23(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g2.23(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g2.23(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g2.23(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 99.3. Such notice shall specify an effective date for such assignment and at the time thereof, the Borrower shall pay all accrued interest, Facility Fees, Utilization Fees and all other amounts (including without limitation all amounts payable under this Section) owing hereunder to such Lender as at such effective date for such assignment.
Appears in 1 contract
Samples: Credit Agreement (Cendant Corp)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, or (iii) shall impose on any Lender or the London Interbank Market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Loan or Fixed Rate Loan or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the Borrower shall pay such additional amount or amounts as will compensate such Lender for such increase or reduction to such Lender upon demand by such Lender.
(b) If, after the date of this Agreement, any Lender shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of 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 capital or on the capital of the Lender's holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its holding company) could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or the policies of its holding company, as the case may be, with respect to capital adequacy) by an amount deemed by such Lender to be material, then, from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such reduction upon demand by such Lender.
(c) A certificate of a Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 10 Business Days after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.Section
Appears in 1 contract
Samples: Credit Agreement (Cendant Corp)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement Original Closing Date any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or any Issuing Bank of the principal of or interest on any LIBOR Eurocurrency Loan or A/C Fronted Fixed Rate Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than (x) changes in respect of taxes imposed on the overall net income of such Lender or such Issuing Bank by the jurisdiction in which such Lender or such Issuing Bank has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended byby any Lender or any Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate, any Lenderthe Bank Xxxx Rate or the Italian Fixed Rate, as the case may be) or (iii) shall impose on any such Lender or such Issuing Bank or the London Interbank Market interbank market (or other relevant interbank market) any other condition affecting this Agreement or any LIBOR Loan Eurocurrency Loans or A/C Fronted Fixed Rate Loan Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or such Issuing Bank of making or maintaining any LIBOR Eurocurrency Loan or A/C Fronted Fixed Rate Loan or increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or such Issuing Bank to be material, then the Borrower shall Borrowers will pay to such Lender or such Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or such Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or any Issuing Bank shall have determined in good faith that the adoption after the date hereof Original Closing Date of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the Original Closing Date in any such law, rule, regulation, agreement or any change guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or any Issuing Bank or any Lender's or any Issuing Bank's holding company 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, Authority has or would have the effect of reducing the rate of return on such Lender's or such Issuing Bank's capital or on the capital of the such Lender's or such Issuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by such Issuing Bank pursuant hereto to a level below that which such Lender (or its such Issuing Bank or such Lender's or such Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or such Issuing Bank's policies or and the policies of its such Lender's or such Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or such Issuing Bank to be material, then, then from time to time, time the Borrower Borrowers shall pay to the Administrative Agent for the account of such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender's or such Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or an Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or such Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower Borrowers and shall be conclusive absent manifest error. The Borrower Borrowers shall pay the Administrative Agent for the account of such Lender or such Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or any Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights or such Issuing Bank's right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Periodcompensation. The protection of this Section 2.14 shall be available to each Lender and each Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Amendment Agreement (Terex Corp)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or the Issuing Bank of the principal of or interest on any LIBOR Loan or Fixed Rate Eurodollar Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than (x) changes in respect of taxes imposed on the overall net income of such Lender or the Issuing Bank by the jurisdiction in which such Lender or the Issuing Bank has its principal office or its applicable Lending Office lending office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, 42 37 deposits with or for the account of, of or credit extended by, any Lender, or (iii) shall impose on by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or the Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or the Issuing Bank of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount reasonably deemed in good faith by such Lender or the Issuing Bank to be material, then the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or the Issuing Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the date hereof in any such law, rule, regulation, agreement or any change guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or the Issuing Bank or any Lender's or the Issuing Bank's holding company 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, Authority has or would have the effect of reducing the rate of return on such Lender's or the Issuing Bank's capital or on the capital of such Lender's or the LenderIssuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender (or its the Issuing Bank or such Lender's or the Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or the Issuing Bank's policies or and the policies of its such Lender's or the Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount reasonably deemed by such Lender or the Issuing Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or the Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall reasonably determined by such Lender or Issuing Bank to be necessary to compensate such Lender or the Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender or the Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights or the Issuing Bank's right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Periodcompensation. The protection of this Section 2.14 shall be available to each Lender and the Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Credit Agreement (Neenah Foundry Co)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any the Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or other amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any Lender, by Lender or (iii) shall impose on any Lender or the London Interbank Market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan made by such LenderAgreement, and the result of any of the foregoing shall be to increase the cost to such the Lender of making or maintaining any LIBOR Loan or Fixed Rate Loan or the Loans to reduce the amount of any sum received or receivable by such Lender hereunder or under the Note (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the Borrower shall will pay to Lender upon demand such additional amount or amounts as will compensate such Lender for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, any Lender shall have determined in good faith that the The adoption after the date hereof of any applicable other law, rule, regulation or guideline regarding capital adequacy, or any change therein, in any of the foregoing or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authoritygovernmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or Lender's holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authorityauthority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's capital or on the capital of the Lender's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loan made by Lender pursuant hereto to a level below that which such Lender (or its Lender's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or and the policies of its Lender's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender or Lender's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender or its holding company as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on an any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such Lender's rights right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Periodperiod. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, guideline or other change or condition which shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur . If any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit are payable pursuant to this Section 2.152.10, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.apply the
Appears in 1 contract
Samples: Credit Agreement (Birner Dental Management Services Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or any Fronting Bank of the principal of or interest on any LIBOR Loan or Fixed Rate Eurodollar Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than (x) changes in respect of taxes imposed on the overall net income of such Lender or Fronting Bank by the jurisdiction in which such Lender or Fronting Bank has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, by any Lender, Lender or such Fronting Bank (iiiexcept any such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall impose on any such Lender or such Fronting Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or such Fronting Bank of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or such Fronting Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or such Fronting Bank to be material, then the Borrower shall will pay to such Lender or such Fronting Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or Fronting Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or Fronting Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the date hereof in any such law, rule, regulation, agreement or any change guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or any Fronting Bank or any Lender's or Fronting Bank's holding company (or other person Controlling such Lender or Fronting Bank (a "holding company")) 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, Authority has or would have the effect of reducing the rate of return on such Lender's or Fronting Bank's capital or on the capital of the such Lender's or Fronting Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by such Fronting Bank pursuant hereto to a level below that which such Lender (or its Fronting Bank or such Lender's or Fronting Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or Fronting Bank's policies or and the policies of its such Lender's or Fronting Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or Fronting Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or Fronting Bank, as the case may be, such additional amount or amounts as will compensate such Lender or Fronting Bank or such Lender's or Fronting Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or Fronting Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or Fronting Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender or Fronting Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or any Fronting Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights or Fronting Bank's right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Periodcompensation. The protection of this Section 2.14 shall be available to each Lender and Fronting Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change in Applicable Law or regulation or in the interpretation or administration thereof extended by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, or (iii) shall impose on any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or the Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or the Issuing Bank of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or the Issuing Bank to be material, then the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or the Issuing Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the date hereof in any such law, rule, regulation, agreement or any change guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or the Issuing Bank or any Lender's or the Issuing Bank's holding company 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, Authority has or would have the effect of reducing the rate of return on such Lender's or the Issuing Bank's capital or on the capital of such Lender's or the LenderIssuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender (or its the Issuing Bank or such Lender's or the Issuing Bank's holding company) could company would have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or the Issuing Bank's policies or and the policies of its such Lender's or the Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or the Issuing Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or the Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or the Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender or the Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights or the Issuing Bank's right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Periodcompensation. The protection of this Section 2.14 shall be available to each Lender and the Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement Restatement Effective Date any change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) Regulatory Change (i) shall subject subjects any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect Issuing L/C Lender to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder Taxes (other than (x) taxes imposed on Non-Excluded Taxes or Taxes described in clause (i) or (ii) of the overall net income of such Lender by the jurisdiction first sentence in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxesSection 2.20(a) or (y) any tax, assessment, or other governmental charge Tax that would not have been imposed but for the failure of any Lender or Issuing L/C Lender to comply with any certification, information, documentation documentation, or other reporting requirement)requirement if such Lender or Issuing L/C Lender could legally comply and such compliance would not materially prejudice such Lender or Issuing L/C Lender’s legal or commercial position) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (ii) shall impose, modify modify, or deem applicable any reserve, special deposit deposit, or similar requirement with respect to any LIBOR Loan or any Letter of Credit (or participating interest therein), against assets of, deposits with or for the account of, or credit extended by, any Lendersuch Lender or Issuing L/C Lender under this Agreement, or (iii) with respect to any LIBOR Loan, shall impose on any such Lender or Issuing L/C Lender or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan made by such Lender or Issuing L/C Lender, and the result of any of the foregoing shall be to increase the cost to such Lender or Issuing L/C Lender of maintaining its Commitment or of making or maintaining any LIBOR Loan or Fixed Rate Loan or to reduce the amount of any sum received or receivable by such Lender or Issuing L/C Lender hereunder (whether of principal, interest interest, or otherwise) in respect thereof by an amount deemed in good faith by such Lender or Issuing L/C Lender to be material, then the Borrower shall pay to the Administrative Agent for the account of such Lender or Issuing L/C Lender such additional amount or amounts as will compensate such Lender for such increase or reduction to such Lender or Issuing L/C Lender, to the extent such amounts have not been included in the calculation of the LIBOR Rate, upon demand by such LenderLender or Issuing L/C Lender (through the Administrative Agent).
(b) If, after the date of this Agreement, If any Lender shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline Regulatory Change regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, liquidity requirements or compliance by any Lender (or its Parent or any Lending Office lending office of such Lender) with any request or directive regarding capital adequacy or liquidity requirements (whether or not having the force of lawLaw) of any such Governmental AuthorityTribunal, monetary authority, central bank bank, or comparable agency, has or would have the effect of reducing the rate of return on such Lender's ’s (or its Parent’s) capital or on the capital of the Lender's holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its holding companyParent) could have achieved but for such applicabilityRegulatory Change, adoption, change or compliance (taking into consideration such Lender's ’s policies or the policies of its holding company, as the case may be, with respect to capital adequacyand liquidity requirements) by an amount deemed in good faith by such Lender to be material, then, then from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such reduction upon demand by such LenderLender (through the Administrative Agent).
(c) A certificate of a Lender setting forth in reasonable detail (i) the Regulatory Change or other event giving rise to such costs, (ii) such amount or amounts as shall be necessary to compensate such Lender as specified in paragraph (a) or (b) above, as the case may be, and (iiiii) the calculation of such amount or amounts referred to in the preceding under clause (i)a) or (b) above, shall be delivered to the Borrower (with a copy to the Administrative Agent) promptly after such Lender determines it is entitled to compensation under this Section 2.10, and shall be conclusive and binding absent manifest errorerror and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowers. The Borrower shall pay to the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 10 Business Days 15 days after its receipt of the same; provided that the Borrower shall not be required to pay the Administrative Agent for the account of such Lender pursuant to this Section 2.10 for any amount specified in clause (a) or (b) above in respect of a period occurring more than 180 days prior to the date on which such Lender notifies the Borrower of such Regulatory Change and such Lender’s intention to claim compensation therefor, except, if the Regulatory Change giving rise to any amount specified in clause (a) or (b) above is retroactive, no such time limitation shall apply so long as such Lender requests compensation within 180 days from the date on which the applicable Tribunal informed such Lender of such Regulatory Change. In preparing such certificate, such Lender may employ such assumptions and allocations of costs and expenses as it shall in good xxxxx xxxx reasonable and may use any reasonable averaging and attribution method.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection of this Section 2.14 2.10 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation regulation, or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware Without prejudice to the survival of any other obligations of the occurrence Borrower hereunder, the obligations of an event or the existence of a condition that (i) would cause it to incur any increased cost Borrower under this Section 2.15, Section 2.16, Section 2.21 2.10 shall survive for one year after the termination of this Agreement and/or the payment or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower assignment of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default Loans or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9Notes.
Appears in 1 contract
Samples: Credit Agreement (Centurylink, Inc)
Reserve Requirements; Change in Circumstances. (a) It is understood that the cost to the Bank of making or maintaining any Existing Letter of Credit or Letter of Credit may fluctuate as a result of the applicability of, or changes in, reserve requirements imposed by the Board. Each Borrower agrees to pay to the Bank from time to time, as provided in paragraph (d) below, such amounts as shall be necessary to compensate the Bank, prospectively from the date of demand, for the portion of the cost of making or maintaining any Existing Letter of Credit or Letter of Credit made to or issued for the account of such Borrower resulting from any such reserve requirements to the extent set forth in this Section.
(b) Notwithstanding any other provision herein, if after the date introduction of this Agreement any applicable law or regulation or any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof thereof, or compliance by the Bank with any applicable guideline or request from any central bank or governmental authority (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender the Bank of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender Existing L/C Obligations, any L/C Obligations or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office Bank or its applicable Lending Office lending office by any jurisdiction or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by any such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, assessment or other governmental charge that would not have been imposed but for the failure of any Lender the Bank to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lenderthe Bank, or (iii) shall impose on any Lender or the London Interbank Market Bank any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan made by such LenderAgreement, and the result of any of the foregoing shall be to increase the cost to such Lender the Bank of making maintaining the Commitment or of issuing or maintaining any LIBOR Loan Existing Letter of Credit or Fixed Rate Loan Letter of Credit or to reduce the amount of any sum received or receivable by such Lender the Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender the Bank to be material, then the each Borrower shall pay to the Bank such additional amount or amounts as will compensate such Lender the Bank for such increase or reduction relating to the Commitment available to, or any Letter of Credit or Existing Letter of Credit issued for the account of such Lender Borrower, upon demand by such Lenderthe Bank. Notwithstanding the foregoing, in no event shall the Bank be permitted to receive any compensation hereunder constituting interest in excess of the Highest Lawful Rate.
(bc) If, after If the date of this Agreement, any Lender Bank shall have determined in good faith that any law, rule, regulation or guideline adopted pursuant to or arising out of the July 1988 Report of the Basle Committee on Banking Regulations and Supervisory Practices entitled "International Convergence of Capital Measurement and Capital Standards" or that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, in any of the foregoing or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency other governmental authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office of such Lender) the Bank 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 agencygovernmental authority, has affects or would have affect the effect amount of reducing capital required or expected to be maintained by the rate Bank or any corporation controlling the Bank and that the amount of return on such Lender's capital is increased by or on based upon the capital existence of the Lender's holding companyCommitment hereunder and other commitments of this type, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its holding company) could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or then the policies of its holding company, as the case may be, with respect to capital adequacy) by an amount deemed by such Lender to be material, then, Borrowers shall from time to time, the Borrower shall time pay to the Administrative Agent Bank upon demand additional amounts sufficient to compensate the Bank or such corporation in the light of such circumstances, to the extent that the Bank reasonably determines such increase in capital to be allocable to the existence of the Commitment hereunder.
(d) If while any Existing Letter of Credit or any Letter of Credit is outstanding, any law, executive order or regulation is enforced, adopted or interpreted by any central bank or other governmental authority so as to affect any Borrower's obligations or the compensation to the Bank in respect of the Existing Letters of Credit or the Letters of Credit or the cost to the Bank of establishing or maintaining the Existing Letters of Credit or the Letters of Credit, then the Borrower for the account of which any such Lender Letter of Credit or Existing Letter of Credit was issued shall from time to time upon demand, reimburse or indemnify the Bank with respect thereto so that the Bank shall be in the same position as if there had been no such additional amount enforcement, adoption or amounts as will compensate such Lender for such reduction upon demand by such Lenderinterpretation. Notwithstanding the foregoing, in no event shall the Bank be permitted to receive any compensation hereunder constituting interest in excess of the Highest Lawful Rate.
(ce) The Bank will notify the Borrowers of any event occurring after the date of this Agreement which will entitle the Bank to compensation pursuant to this SECTION 2.10. A certificate of a Lender the Bank setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender the Bank as specified in paragraph (a), (b), (c) or (bd) above, above as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be simultaneously delivered to the Borrower owing such amount or amounts and shall be conclusive absent manifest errorPRIMA FACIE evidence of its accuracy. The Such Borrower shall pay to the Administrative Agent for the account of such Lender Bank the amount shown as due on any such certificate within 10 Business Days ten (10) days after its such Borrower's receipt of the same.
(d) Failure on . The failure of the part of any Lender Bank to demand increased compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights the right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposedthereafter.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, by any Lender, Lender or (iii) shall impose on any such Lender or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan Eurodollar Loans or Fixed Rate Loan Loans made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan Loan, or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the Borrower shall will pay to such Lender upon demand such additional amount or amounts as will compensate such Lender for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the date hereof in any such law, rule, regulation, agreement or any change guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or any Lender's holding company 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, Authority has or would have the effect of reducing the rate of return on such Lender's capital or on the capital of the such Lender's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made by such Lender pursuant hereto to a level below that which such Lender (or its such Lender's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or and the policies of its such Lender's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender to be material, then, then from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such reduction upon demand by such Lender.time the
(c) A certificate of a Lender setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or its holding company (including the calculation thereof) as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Periodcompensation. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed. Notwithstanding any other provision of this Section, no Lender shall be entitled to demand compensation hereunder in respect of any Competitive Loan if it shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or circumstance giving rise to such demand at the existence of a condition that (i) would cause time it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require submitted the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit Competitive Bid pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by which such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such LenderLoan was made.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Credit Agreement (He Holdings Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement Closing Date any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or any Issuing Bank of the principal of or interest on any LIBOR Eurocurrency Loan or A/C Fronted Fixed Rate Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than (x) changes in respect of taxes imposed on the overall net income of such Lender or such Issuing Bank by the jurisdiction in which such Lender or such Issuing Bank has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended byby any Lender or any Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate, any Lenderthe Bank Xxxx Rate or the Italian Fixed Rate, as the case may be) or (iii) shall impose on any such Lender or such Issuing Bank or the London Interbank Market interbank market (or other relevant interbank market) any other condition affecting this Agreement or any LIBOR Loan Eurocurrency Loans or A/C Fronted Fixed Rate Loan Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or such Issuing Bank of making or maintaining any LIBOR Eurocurrency Loan or A/C Fronted Fixed Rate Loan or increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or such Issuing Bank to be material, then the Borrower shall Borrowers will pay to such Lender or such Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or such Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or any Issuing Bank shall have determined in good faith that the adoption after the date hereof Closing Date of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the Closing Date in any such law, rule, regulation, agreement or any change guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or any Issuing Bank or any Lender’s or any Issuing Bank’s holding company 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, Authority has or would have the effect of reducing the rate of return on such Lender's ’s or such Issuing Bank’s capital or on the capital of the such Lender's ’s or such Issuing Bank’s holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by such Issuing Bank pursuant hereto to a level below that which such Lender (or its such Issuing Bank or such Lender’s or such Issuing Bank’s holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's ’s or such Issuing Bank’s policies or and the policies of its such Lender’s or such Issuing Bank’s holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or such Issuing Bank to be material, then, then from time to time, time the Borrower Borrowers shall pay to the Administrative Agent for the account of such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or an Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or such Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower Borrowers and shall be conclusive absent manifest error. The Borrower Borrowers shall pay the Administrative Agent for the account of such Lender or such Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or any Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights ’s or such Issuing Bank’s right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Periodcompensation. The protection of this Section 2.14 shall be available to each Lender and each Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Credit Agreement (Terex Corp)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change Change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall:
(i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, the Administrative Agent or any Issuing Bank (iiiexcept any such reserve requirement to the extent reflected in the Adjusted Interbank Offered Rate), or
(ii) shall impose on any Lender Lender, the Administrative Agent or any Issuing Bank or the London Interbank Market interbank market any other condition condition, cost or expense affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Loans made by such LenderLender or any Letter of Credit or participation therein, or
(iii) subject any Lender to any tax of any kind whatsoever with respect to any Loan, this Agreement or any Letter of Credit or participation therein, or change the basis of taxation of payments to such Lender in respect thereof (except for Indemnified Taxes covered by Section 2.20 and Taxes described in clauses (b) through (d) of the definition of Excluded Taxes), and the result of any of the foregoing shall be to increase the cost to such Lender or such Issuing Bank of making making, continuing, converting into or maintaining any LIBOR Loan (or Fixed Rate Loan of maintaining its obligation to make any Loan) or to increase the cost to such Lender, the Administrative Agent or such Issuing Bank of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender Lender, the Administrative Agent or such Issuing Bank to be material, then the Borrower shall will pay to such Lender, the Administrative Agent or such Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender Lender, the Administrative Agent or such Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) IfIf any Lender, after the date of this Agreement, Administrative Agent or any Lender Issuing Bank shall have determined that any Change in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of such Lender) with any request or directive Law regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, liquidity has or would have the effect of reducing the rate of return on such Lender's ’s, the Administrative Agent’s or such Issuing Bank’s capital or on the capital of such Lender’s, the Lender's holding companyAdministrative Agent’s or such Issuing Bank’s Parent Company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made by, or participations in Letters of Credit purchased by, such Lender or the Letters of Credit issued by such Issuing Bank to a level below that which such Lender (Lender, the Administrative Agent or its holding company) such Issuing Bank or such Lender’s, the Administrative Agent’s or such Issuing Bank’s Parent Company could have achieved but for such applicability, adoption, change or compliance Change in Law (taking into consideration such Lender's ’s, the Administrative Agent’s or such Issuing Bank’s policies or and the policies of its holding companysuch Lender’s, the Administrative Agent’s or such Issuing Bank’s Parent Company with respect to capital adequacy or liquidity requirements) by an amount deemed by such Lender, the Administrative Agent or the Issuing Bank to be material, then from time to time the Borrower shall pay to such Lender, the Administrative Agent or such Issuing Bank, as the case may be, with respect to capital adequacy) by an amount deemed by such Lender to be material, then, from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender Lender, the Administrative Agent or the Issuing Bank or such Lender’s, the Administrative Agent’s or such Issuing Bank’s holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender Lender, the Administrative Agent or an Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender Lender, the Administrative Agent or such Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as of this Section and the case may be, and (ii) the calculation of basis for calculating such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Administrative Agent for or such Issuing Bank, as the account of such Lender case may be, the amount or amounts shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender Lender, the Administrative Agent or any Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect pursuant to any Interest Period this Section shall not constitute a waiver of such Lender's rights ’s, the Administrative Agent’s or such Issuing Bank’s right to demand such compensation; provided, however, that the Borrower shall not be under any obligation to compensate any Lender, the Administrative Agent or any Issuing Bank under paragraph (a) or (b) above for increased costs or reductions with respect to any period prior to the date that is 180 days prior to such request if such Lender, the Administrative Agent or any Issuing Bank knew or could reasonably have been expected to know of the circumstances giving rise to such increased costs or reductions and of the fact that such circumstances would result in a claim for increased compensation for by reason of such increased costs or reductions; provided further that the foregoing limitation shall not apply to any increased costs or reduction reductions arising out of the retroactive application of any Change in amounts received or receivable or reduction in return on capital with respect to Law within such Interest Period or any other Interest Period180-day period. The protection of this Section 2.14 shall be available to each Lender Lender, the Administrative Agent and each Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation or condition which Change in Law that shall have occurred or been imposed; provided that such amounts shall only be payable by the Borrower to the applicable Lender under this Section 2.14 so long as it is such Lender’s general policy or practice to demand compensation in similar circumstances under comparable provisions of other financing agreements.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it The Borrower shall not be obligated to incur make any increased cost payments under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if 2.14 solely as a result thereof the additional monies which would otherwise be required to be paid of a Lender having any direct or the reduction of amounts receivable by such Lender thereunder indirect equity interest in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any member of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9Consolidated Group.
Appears in 1 contract
Samples: Credit Agreement (Belmond Ltd.)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) Regulatory Change (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes Taxes imposed on or measured by the capital, receipts or franchises of such Lender or the overall gross or net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax Tax which is enacted or adopted by such jurisdiction, political subdivision subdivision, or taxing authority as a direct substitute for any such taxesTaxes) or (y) any taxTax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation documentation, or other reporting requirement), (ii) shall impose, modify modify, or deem applicable any reserve, special deposit deposit, or similar requirement with respect to any LIBOR Loan or any Letter of Credit (or participating interest therein), against assets of, deposits with or for the account of, or credit extended by, any Lendersuch Lender under this Agreement, or (iii) with respect to any LIBOR Loan, shall impose on any such Lender or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of maintaining its Commitment or of making or maintaining any LIBOR Loan or Fixed Rate Loan or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest interest, or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such increase or reduction to such Lender Lender, to the extent such amounts have not been included in the calculation of the LIBOR Rate, upon demand by such LenderLender (through the Administrative Agent).
(b) If, after the date of this Agreement, If any Lender shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline Regulatory Change regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, adequacy or compliance by any Lender (or its parent or any Lending Office lending office of such Lender) with any request or directive regarding capital adequacy (whether or not having the force of lawLaw) of any such Governmental AuthorityTribunal, monetary authority, central bank bank, or comparable agency, has or would have the effect of reducing the rate of return on such Lender's ’s (or its parent’s) capital or on the capital of the Lender's holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its holding companyparent) could have achieved but for such applicabilityRegulatory Change, adoption, change or compliance (taking into consideration such Lender's ’s policies or the policies of its holding company, as the case may be, with respect to capital adequacy) by an amount deemed in good faith by such Lender to be material, then, then from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such reduction upon demand by such LenderLender (through the Administrative Agent).
(c) A certificate of a Lender setting forth in reasonable detail (i) the Regulatory Change or other event giving rise to such costs, (ii) such amount or amounts as shall be necessary to compensate such Lender as specified in paragraph (a) or (b) above, as the case may be, and (iiiii) the calculation of such amount or amounts referred to in the preceding under clause (ia)(a), shall be delivered to the Borrower (with a copy to the Administrative Agent) promptly after such Lender determines it is entitled to compensation under this Section 2.10, and shall be conclusive and binding absent manifest error. The Borrower shall pay to the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 10 Business Days 15 days after its receipt of the same. In preparing such certificate, such Lender may employ such assumptions and allocations of costs and expenses as it shall in good xxxxx xxxx reasonable and may use any reasonable averaging and attribution method.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's ’s rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection of this Section 2.14 2.10 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation regulation, or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender seek compensation pursuant to this Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred2.10, the Borrower may (but subject in any such case to the payments required by Section 2.17)may, provided provided, that there shall exist no Default or Event of DefaultDefault has occurred and is continuing, upon at least five Business Days' prior written or telecopier give notice to such Lender (with copies to the Agents) that it wishes to seek one or more Persons (other than the Borrower or an Affiliate of the Borrower) to assume the Commitment of such Lender and to purchase its outstanding Loans and Notes (if any). Each Lender requesting compensation pursuant to this Section 2.10 agrees to sell its Commitment, Loans, Notes, and interest in this Agreement and the Administrative Agentother Loan Papers to any such Person for an amount equal to the sum of the outstanding unpaid principal of and accrued interest on such Loans and Notes plus all other fees and amounts (including, but not more than 30 days after receipt without limitation, any compensation claimed by such Lender under this Section 2.10 and as to which such Lender has delivered the certificate required by Section 2.10(c) on or before the date such Commitment, Loans, and Notes are purchased) due such Lender hereunder calculated, in each case, to the date such Commitment, Loans, Notes (if any), and interest are purchased, whereupon such Lender shall have no further Commitment or other obligation to the Borrower hereunder or under any other Loan Paper.
(f) If the Borrower is required to pay additional amounts to or for the account of notice from any Lender pursuant to this Section 2.10, then such Lender will agree to use reasonable efforts to change the jurisdiction of its lending office so as to eliminate or reduce any such additional payment which may thereafter accrue if such change, in the reasonable judgment of such Lender, identify is not otherwise materially disadvantageous to such Lender.
(g) Without prejudice to the Administrative Agent a lending institution reasonably acceptable to survival of any other obligations of the Administrative Agent which will purchase the CommitmentBorrower hereunder, the amount obligations of outstanding the Borrower under this Section 2.10 shall survive for one year after the termination of this Agreement and/or the payment or assignment of any of the Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9or Notes.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the Original Closing Date with respect to the Tranche C Lenders, if after the Restatement Closing Date with respect to the Revolving Credit Lenders and the Issuing Banks and if after the date of this each Incremental Term Assumption Agreement with respect to each applicable Incremental Term Lender, any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or any Issuing Bank of the principal of or interest on any LIBOR Loan or Fixed Rate Eurocurrency Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than (x) changes in respect of taxes imposed on the overall net income of such Lender or such Issuing Bank by the jurisdiction in which such Lender or such Issuing Bank has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, by any Lender, Lender or any Issuing Bank (iiiexcept any such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall impose on any such Lender or such Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurocurrency Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or such Issuing Bank of making or maintaining any LIBOR Eurocurrency Loan or Fixed Rate Loan increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining any participation therein or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or such Issuing Bank to be material, then the Borrower shall will pay to such Lender or such Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or such Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or any Issuing Bank shall have determined in good faith that the adoption after the Original Closing Date with respect to the Tranche C Lenders, after the Restatement Closing Date with respect to the Revolving Credit Lenders and the Issuing Banks and after the date hereof of each Incremental Term Loan Assumption Agreement with respect to each applicable Incremental Term Lender, of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the Original Closing Date with respect to the Tranche C Lenders, after the Restatement Closing Date with respect to the Revolving Credit Lenders and the Issuing Banks and after the date of each Incremental Term Loan Assumption Agreement with respect to each applicable Incremental Term Lender, in any such law, rule, regulation, agreement or any change guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or any Issuing Bank or any Lender's or any Issuing Bank's holding company 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, Authority has or would have the effect of reducing the rate of return on such Lender's or such Issuing Bank's capital or on the capital of the such Lender's or such Issuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by such Issuing Bank pursuant hereto to a level below that which such Lender (or its such Issuing Bank or such Lender's or such Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or such Issuing Bank's policies or and the policies of its such Lender's or such Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or such Issuing Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender's or such Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or an Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or such Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender or such Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or any Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights or such Issuing Bank's right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Periodcompensation. The protection of this Section 2.14 shall be available to each Lender and each Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Amendment Agreement (Terex Corp)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the 29 25 interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender toresult in the imposition, modification or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis applicability of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, by any LenderLender or any Issuing Bank, or (iii) shall impose result in the imposition on any Lender or the London Interbank Market interbank market of any other condition affecting this Agreement Agreement, such Lender's Commitment or any LIBOR Eurocurrency Loan or Fixed Rate Loan made by such LenderLender or any Letter of Credit, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Eurocurrency Loan or Fixed Rate Loan or of issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or such Issuing Bank to be material, then the Borrower shall pay such additional amount or amounts as will compensate such Lender Lender, or such Issuing Bank, as the case may be, for such increase additional costs or reduction will be paid by the Borrowers to such Lender, or such Issuing Bank, as the case may be, upon demand. Notwithstanding the foregoing, no Lender or Issuing Bank shall be entitled to request compensation under this paragraph with respect to any Competitive Loan or Letter of Credit if the change giving rise to such request was applicable to such Lender upon demand by or Issuing Bank at the time of submission of the Competitive Bid or L/C Competitive Bid pursuant to which such LenderCompetitive Loan or Letter of Credit was made or issued.
(b) If, after the date of this Agreement, If any Lender or any Issuing Bank shall have determined in good faith that the adoption of any law, rule, regulation or guideline arising out of the July 1988 report of the Basle Committee on Banking Regulations and Supervisory Practices entitled "International Convergence of Capital Measurement and Capital Standards", or the adoption after the date hereof of any applicable other law, rule, regulation or guideline regarding capital adequacy, or any change therein, in any of the foregoing or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender or Issuing Bank (or any Lending Office lending office of such Lender or such Issuing Bank) or any Lender) 's or Issuing Bank's holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authorityauthority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or Issuing Bank's capital or on the capital of the such Lender's or Issuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement, such Lender's Commitment or the Loans made or Letters of Credit issued by such Lender or Issuing Bank pursuant hereto to a level below that which such Lender (or its Issuing Bank or such Lender's or Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or Issuing Bank's policies or and the policies of its such Lender's or Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or Issuing Bank to be material, then, then from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender time such additional amount or amounts as will compensate such Lender or Issuing Bank for such reduction upon demand will be paid by the Borrowers to such LenderLender or Issuing Bank.
(c) A certificate of a any Lender or Issuing Bank setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender or Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower Company and shall be conclusive absent manifest error. The Borrower Borrowers shall pay the Administrative Agent for the account of such Lender or Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure on the part of any Lender or Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such Lender's rights or Issuing Bank's right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Periodperiod; provided, however, that no Lender or Issuing Bank shall be entitled to compensation under this Section 2.13 for any costs incurred or reductions 30 26 suffered with respect to any date unless it shall have notified the Company that it will demand compensation for such costs or reductions under paragraph (c) above not more than 90 days after the later of (i) such date and (ii) the date on which it shall have become aware of such costs or reductions. The protection of this Section 2.14 shall be available to each Lender and Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, guideline or other change or condition which shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any Lender, or (iii) shall impose on by any Lender or the Fronting Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or the Fronting Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or the Fronting Bank of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or the Fronting Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or the Fronting Bank to be material, then the applicable Borrower shall will pay to such Lender or the Fronting Bank, as the case may be, upon demand as provided in paragraph (c) below such additional amount or amounts as will compensate such Lender or the Fronting Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or the Fronting Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the date hereof in any such law, rule, regulation, agreement or any change guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or the Fronting Bank or any Lender's or the Fronting Bank's holding company 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, Authority has or would have the effect of reducing the rate of return on such Lender's or the Fronting Bank's capital or on the capital of such Lender's or the LenderFronting Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Fronting Bank pursuant hereto to a level below that which such Lender (or its the Fronting Bank or such Lender's or the Fronting Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or the Fronting Bank's policies or and the policies of its such Lender's or the Fronting Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or the Fronting Bank to be material, then, then from time to time, the Borrower time IMS shall pay (or cause the Borrowers to the Administrative Agent for the account of pay) to such Lender or the Fronting Bank, as the case may be, as provided in paragraph (c) below such additional amount or amounts as will compensate such Lender or the Fronting Bank or such Lender's or the Fronting Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or the Fronting Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or the Fronting Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower IMS and shall be conclusive absent manifest error. The IMS shall (or shall cause the applicable Borrower shall to) pay the Administrative Agent for the account of such Lender or the Fronting Bank the amount shown as due on any such certificate delivered by it within 10 Business Days 30 days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Fronting Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights or the Fronting Bank's right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Periodcompensation. The protection of this Section 2.14 shall be available to each Lender and the Fronting Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Credit Agreement (International Manufacturing Services Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or the Issuing Bank of the principal of or interest on any LIBOR Loan or Fixed Rate Eurodollar Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than (x) changes in respect of taxes imposed on the overall net income of such Lender or the Issuing Bank by the jurisdiction in which such Lender or the Issuing Bank has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any Lender, or (iii) shall impose on by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or the Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or the Issuing Bank of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or the Issuing Bank to be material, then the Borrower shall will pay to such Lender or the Issuing Bank upon demand such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or the Issuing Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the date hereof in any such law, rule, regulation, agreement or any change guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or the Issuing Bank or any Lender's or the Issuing Bank's holding company 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, Authority has or would have the effect of reducing the rate of return on such Lender's or the Issuing Bank's capital or on the capital of such Lender's or the LenderIssuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participation in Letters of Credit issued by the Issuing Bank purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender (or its the Issuing Bank or such Lender's or the Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or the Issuing Bank's policies or and the policies of its such Lender's or the Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or the Issuing Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or the Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or the Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender or the Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same. Notwithstanding the foregoing, no Lender nor the Issuing Bank shall have the right to collect payments from the Borrower pursuant to paragraph (b) of this Section 2.12 unless it is the policy of such Lender or the Issuing Bank, at the time of such collection, to collect similar payments from borrowers (if any) who are similarly situated as the Borrower, including with respect to credit standing, in connection with credit facilities similar to those made available pursuant to this Agreement, where the documents governing such credit facilities establish the right of such Lender or the Issuing Bank to collect such payments.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights or the Issuing Bank's right to demand compensation for any increased costs such compensation; PROVIDED that a Lender's or reduction in amounts received the Issuing Bank's first demand relating to a particular event or receivable or reduction in return on capital with respect circumstance giving rise to such Interest Period right shall be made not later than 180 days after such Lender or any other Interest Periodthe Issuing Bank first becomes aware of such event or circumstance. The protection of this Section 2.14 shall be available to each Lender and the Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change Change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended byby any Lender or Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate), shall subject any Lender, any Issuing Bank or the Administrative Agent to any Taxes (iiiother than (i) Indemnified Taxes imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (ii) Excluded Taxes) on its Loans, Commitments or other obligations or its deposits, reserves, other liabilities or capital attributable thereto or shall impose on any such Lender or Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or Issuing Bank of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan increase the cost to any Lender or Issuing Bank of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or Issuing Bank to be material, then the Borrower shall will pay to such Lender or Issuing Bank, as the case may be, from time to time such additional amount or amounts as will compensate such Lender or Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or Issuing Bank shall have determined that any Change in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of such Lender) with any request or directive Law regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, liquidity has or would have the effect of reducing the rate of return on such Lender's ’s or Issuing Bank’s capital or on the capital of the such Lender's ’s or Issuing Bank’s holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by an Issuing Bank pursuant hereto to a level below that which such Lender (or its Issuing Bank or such Lender’s or Issuing Bank’s holding company) company could have achieved but for such applicability, adoption, change or compliance Change in Law (taking into consideration such Lender's ’s or Issuing Bank’s policies or and the policies of its such Lender’s or Issuing Bank’s holding company, as the case may be, company with respect to capital adequacyadequacy or liquidity) by an amount deemed by such Lender or Issuing Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender or Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days 30 days after its receipt of the same.
(d) Failure or delay on the part of any Lender or Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights ’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be under any obligation to compensate any Lender or Issuing Bank under paragraph (a) or (b) above with respect to increased costs or reductions with respect to any period prior to the date that is 180 days prior to such request if such Lender or Issuing Bank knew or could reasonably have been expected to know of the circumstances giving rise to such increased costs or reductions and of the fact that such circumstances would result in a claim for increased compensation for by reason of such increased costs or reductions; provided further that the foregoing limitation shall not apply to any increased costs or reduction reductions arising out of the retroactive application of any Change in amounts received or receivable or reduction in return on capital with respect to Law within such Interest Period or any other Interest Period180-day period. The protection of this Section 2.14 shall be available to each Lender and Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation or condition which Change in Law that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after If the date adoption of this Agreement or any change in Applicable any Requirement of Law or regulation or in the interpretation or administration application thereof applicable to any Lender, or compliance by any Governmental Authority charged Lender with the interpretation any request or administration thereof directive (whether or not having the force of law) from any central bank or other Governmental Authority, in each case made subsequent to the RestatementSecond Amendment Closing Date (i) shall subject any Lender toor, or increase if later, the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest date on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein becomes a Lender):
(or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (iii) shall impose, modify or deem hold applicable any reserve, special deposit deposit, compulsory loan or similar requirement against assets ofheld by, deposits with or other liabilities in or for the account of, advances, loans or other extensions of credit extended by, or any other acquisition of funds by, any Lender, or office of such Lender which is not otherwise included in the determination of the LIBO Rate hereunder (iiiexcluding any Tax of any kind whatsoever); or
(ii) shall impose on any such Lender or the London Interbank Market any other condition affecting this Agreement or (excluding any LIBOR Loan or Fixed Rate Loan made by such Lender, Tax of any kind whatsoever); and the result of any of the foregoing shall be is to increase the cost to such Lender of making or maintaining any LIBOR Loan or Fixed Rate Loan or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principalIssuing Bank, interest or otherwise) in respect thereof by an amount deemed in good faith by which such Lender deems to be material, then of making, converting into, continuing or maintaining Eurodollar Loans or issuing or participating in Letters of Credit (in each case hereunder) or to reduce any amount receivable hereunder in respect thereof, then, in any such case, upon notice to the Borrower from such Lender, through the Administrative Agent in accordance herewith, the Borrower shall promptly pay such Lender, upon its demand, any additional amount or amounts as will necessary to compensate such Lender for such increase increased cost or reduction reduced amount receivable with respect to such Eurodollar Loans; provided that, in any such case, the Borrower may elect to convert the Eurodollar Loans made by such Lender hereunder to ABR Loans by giving the Administrative Agent at least one Business Day’s notice of such election, in which case the Borrower shall promptly pay to such Lender, upon demand, without duplication, amounts theretofore required to be paid to such Lender upon demand pursuant to this Section 2.14(a) and such amounts, if any, as may be required pursuant to Section 2.05(b) and Section 2.16. If any Lender becomes entitled to claim any additional amounts pursuant to this Section 2.14(a), it shall provide prompt notice thereof to the Borrower, through the Administrative Agent, certifying (x) that one of the events described in this clause (a) has occurred and describing in reasonable detail the nature of such event, (y) as to the increased cost or reduced amount resulting from such event and (z) as to the additional amount demanded by such Lender and a reasonably detailed explanation of the calculation thereof. (provided, that such request will not in any way require disclosure of confidential or price-sensitive information or any other information the disclosure of which is prohibited by law). Such a certificate as to any additional amounts payable pursuant to this Section 2.14(a) submitted by such Lender or Issuing Bank, through the Administrative Agent, to the Borrower shall be conclusive in the absence of manifest error. Notwithstanding anything to the contrary in this Section 2.14(a), the Borrower shall not be required to compensate a Lender pursuant to this Section 2.14(a) for any amounts incurred more than six months prior to the date that such Lender notifies the Borrower of such Lender’s intention to claim compensation therefor (except that, if the adoption of or change in any Requirement of Law or in the interpretation or application thereof giving rise to such increased costs or reductions is retroactive, then provided such Lender shall, within six months of such adoption, change, interpretation or application, have notified the Borrower of such Lender’s intention to claim compensation therefor, the six-month period first referred to in this sentence shall be extended to include the period of retroactive effect thereof). This covenant shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) If, after the date of this Agreement, If any Lender shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change in any Requirement of Law regarding capital adequacy or liquidity or in the interpretation or administration application thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any such Lender (or any Lending Office of corporation controlling such Lender) Lender with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of from any such Governmental Authority, central bank in each case, made subsequent to the RestatementSecond Amendment Closing Date, does or comparable agency, has or would shall have the effect of reducing the rate of return on such Lender's ’s or such corporation’s capital or on the capital of the Lender's holding company, if any, as a consequence of its such Lender’s obligations hereunder to a level below that which such Lender (or its holding company) such corporation could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's ’s or such corporation’s policies or the policies of its holding company, as the case may be, with respect to capital adequacyadequacy or liquidity) by an amount deemed by such Lender or Issuing Bank to be material, then, then from time to time, within ten Business Days after submission by such Lender to the Borrower (through the Administrative Agent) of a written request therefor certifying (x) that one of the events described in this clause (b) has occurred and describing in reasonable detail the nature of such event, (y) as to the reduction of the rate of return on capital resulting from such event and (z) as to the additional amount or amounts demanded by such Lender or corporation and a reasonably detailed explanation of the calculation thereof, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender or corporation for such reduction upon demand (provided, that such request will not in any way require disclosure of confidential or price-sensitive information or any other information the disclosure of which is prohibited by law). Such a certificate as to any additional amounts payable pursuant to this Section 2.14(b) submitted by such Lender, through the Administrative Agent, to the Borrower shall be conclusive in the absence of manifest error. Notwithstanding anything to the contrary in this Section 2.14(b), the Borrower shall not be required to compensate a Lender pursuant to this Section 2.14(b) for any amounts incurred more than six months prior to the date that such Lender notifies the Borrower of such Lender’s intention to claim compensation therefor (except that, if the adoption of or change in any Requirement of Law or in the interpretation or application thereof giving rise to such increased costs or reductions is retroactive, then provided such Lender shall, within six months of such adoption, change, interpretation or application, have notified the Borrower of such Lender’s intention to claim compensation therefor, the six-month period first referred to in this sentence shall be extended to include the period of retroactive effect thereof). This covenant shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(c) A certificate of a Lender setting forth in reasonable detail Notwithstanding anything herein to the contrary, (i) such amount the Xxxx Xxxxx Wall Street Reform and Consumer Protection Act, and all requests, rules, regulations, guidelines and directives promulgated thereunder or amounts as shall be necessary to compensate such Lender as specified issued in paragraph (a) or (b) above, as the case may beconnection therewith, and (ii) all requests, rules, guidelines or directives promulgated by the calculation of such amount Bank for International Settlements, the Basel Committee on Banking Supervision (or amounts referred any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, in the preceding clause (i)each case, shall be delivered deemed to have been enacted, adopted, promulgated or issued, as applicable, subsequent to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent RestatementSecond Amendment Closing Date for the account of such Lender the amount shown as due on any such certificate within 10 Business Days after its receipt of the sameall purposes herein.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change Change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall:
(i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, the Administrative Agent or the Issuing Bank,
(ii) subject any Lender, the Administrative Agent or any Issuing Bank to any Taxes (other than Indemnified Taxes or Excluded Taxes) on its loans, loan principal, letters of credit, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) shall impose on any Lender Lender, the Administrative Agent or any Issuing Bank or the London Interbank Market relevant interbank market any other condition affecting this Agreement or any LIBOR Loan Term SOFR Loans or Fixed Rate Loan CDOR Loans made by such LenderLender or any Letter of Credit (except, in each case, any such reserve requirement which is reflected in the Term SOFR Rate), and the result of any of the foregoing shall be to increase the cost to such Lender or such Issuing Bank of making or maintaining, continuing or converting to any Term SOFR Loan or CDOR Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to any Lender, the Administrative Agent or any Issuing Bank of issuing or maintaining any LIBOR Loan Letter of Credit or Fixed Rate Loan purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount reasonably deemed in good faith by such Lender Lender, the Administrative Agent or such Issuing Bank to be material, then the Borrower shall will pay to such Lender, the Administrative Agent or the Issuing Bank, as the case may be, promptly upon demand such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) IfIf any Lender, after the date of this Agreement, Administrative Agent or any Lender Issuing Bank shall have determined that any Change in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of such Lender) with any request or directive Law regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, liquidity requirements has or would have the effect of reducing the rate of return on such Lender's ’s, the Administrative Agent’s or the Issuing Bank’s capital or on the capital of such Lender’s, the Lender's Administrative Agent’s or the Issuing Bank’s holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made by, or participations in Letters of Credit or Swingline Loans purchased by, such Lender or the Letters of Credit issued by such Issuing Bank to a level below that which such Lender (Lender, the Administrative Agent or its such Issuing Bank or such Lender’s, the Administrative Agent’s or such Issuing Bank’s holding company) company could have achieved but for such applicability, adoption, change or compliance Change in Law (taking into consideration such Lender's ’s, the Administrative Agent’s or such Issuing Bank’s policies or and the policies of its such Lender’s, the Administrative Agent’s or such Issuing Bank’s holding companycompany with respect to capital adequacy or liquidity) by an amount reasonably deemed by such Lender, the Administrative Agent or such Issuing Bank to be material, then from time to time the Borrower shall pay to such Lender, the Administrative Agent or the Issuing Bank, as the case may be, with respect to capital adequacy) by an amount deemed by such Lender to be material, then, from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender Lender, the Administrative Agent or such Issuing Bank or such Lender’s, the Administrative Agent’s or such Issuing Bank’s holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender Lender, the Administrative Agent or an Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall reasonably determined by such Person to be necessary to compensate such Lender Lender, the Administrative Agent or such Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) aboveof this Section, as the case may be, calculations and (ii) the calculation of criteria applied to determine such amount or amounts referred to amounts, and other documentation or information reasonably supporting the conclusions in the preceding clause (i)such certificate, shall be delivered to the Borrower and shall shall, absent clearly demonstrable error, be final and conclusive absent manifest errorand binding. The Borrower shall pay such Lender, the Administrative Agent for or the account of such Lender Issuing Bank, as the case may be, the amount or amounts shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender Lender, the Administrative Agent or any Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect pursuant to any Interest Period this Section shall not constitute a waiver of such Lender's rights ’s, the Administrative Agent’s or the Issuing Bank’s right to demand compensation such compensation; provided that the Borrower shall not be under any obligation to compensate any Lender, the Administrative Agent or any Issuing Bank under paragraph (a) or (b) above for increased costs or reductions with respect to any period prior to the date that is 270 days prior to such request; provided, further, that the foregoing limitation shall not apply to any increased costs or reduction reductions arising out of the retroactive application of any Change in amounts received or receivable or reduction in return on capital with respect to Law within such Interest Period or any other Interest Period270-day period. The protection of this Section 2.14 shall be available to each Lender Lender, the Administrative Agent and each Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation or condition which Change in Law that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Credit Agreement (NRG Energy, Inc.)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if If after the date of this Agreement (or as provided in the last sentence of this Section 2.08(a)) any adoption, issuance or change in Applicable Law applicable law, rule or regulation regulation, guideline, request or directive or in the interpretation or administration thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof (whether or not having the force of lawlaw but with respect to which similarly situated banks generally comply) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest impose on any LIBOR Loan or Fixed Rate Loan made by such Lender or Bank any other fees or amounts payable hereunder Taxes (other than (xIndemnified Taxes and Excluded Taxes) taxes imposed on the overall net income its loans, loan principal, letters of such Lender by the jurisdiction in which such Lender has its principal office credit, commitments or other obligations, or its applicable Lending Office deposits, reserves, other liabilities or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement)capital attributable thereto, (ii) shall impose, modify or deem applicable any reserve, special deposit deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, Bank or (iii) shall impose on any Lender or the London Interbank Market Bank any other cost or condition (other than Taxes), however denominated, affecting this Agreement or any LIBOR Loan or Fixed Rate Term Loan made by such LenderBank or any participations therein (any change referred to in any of the preceding clauses (i), (ii), or (iii) being called an “Increased Cost Change”), and the result of any of the foregoing shall be to increase the cost to such Lender Bank of making or maintaining any LIBOR Term Loan (or Fixed Rate maintaining a Term Loan Commitment) or to reduce the amount of any sum received or receivable by such Lender Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender Bank to be material, then the Borrower shall pay then, subject to Section 2.08(d), such additional amount or amounts as will compensate such Lender Bank for such increase or reduction will be paid by the Company to such Lender upon demand Bank as provided in Section 2.08(c). Any such amount determined pursuant to this Section 2.08(a) shall be computed on the basis of the net effect of any Increased Cost Changes incurred by such Lender.
Bank from time to time after the Effective Date. For all purposes of this Section 2.08, (bx) Ifthe Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Regulations and Supervisory Practices (or any successor similar authority) or the United States or foreign financial regulatory authorities, in each case pursuant to Basel III, shall in each case, if they shall have any of the effects referred to in clauses (i), (ii) or (iii) of this Section 2.08(a), be deemed to be an “Increased Cost Change”, whether enacted, adopted, promulgated or issued before or after the date of this Agreement, any Lender shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of 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 capital or on the capital of the Lender's holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its holding company) could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or the policies of its holding company, as the case may be, with respect to capital adequacy) by an amount deemed by such Lender to be material, then, from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such reduction upon demand by such Lender.
(c) A certificate of a Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 10 Business Days after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Term Loan Agreement (Occidental Petroleum Corp /De/)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change Change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall (i) shall subject any Lender to, or increase the net amount of, to any tax, levy, impost, duty, charge, fee, deduction or withholding tax of any kind whatsoever with respect to this Agreement or any LIBOR Eurodollar Loan or Fixed Rate Loanmade by it, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Eurodollar Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than (xA) changes in respect of taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein and (B) Taxes or any tax Other Taxes, which is enacted or adopted shall be governed by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirementSection 2.16), ; (ii) shall impose, modify or deem applicable any reserve, special deposit deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended by, or participated in by any Lender, Lender (except any reserve requirement reflected in the Eurodollar Rate hereunder); or (iii) shall impose on any Lender or the London Interbank Market interbank eurodollar market any other condition condition, cost or expense affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such Lender, ; and the result of any of the foregoing shall be to increase the cost to such Lender of making making, converting to, continuing or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan of maintaining its obligation to make any such Loan, or to increase the cost to such Lender, or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by ), then, upon prompt request of such Lender, such Borrower will pay to such Lender to be material, then the Borrower shall pay as provided in Section 2.09(c) such additional amount or amounts as will compensate such Lender for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender shall have determined determines that any Change in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Law affecting such Lender (or any Lending Office of such Lender or such Lender) with any request or directive ’s holding company, if any, regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agencyliquidity requirements, has or would have the effect of reducing the rate of return on such Lender's ’s capital or on the capital of the such Lender's ’s holding company, if any, as a consequence of its obligations hereunder this Agreement, the Commitments of such Lender or the Loans made by such Lender, to a level below that which such Lender (or its such Xxxxxx’s holding company) company could have achieved but for such applicability, adoption, change or compliance Change in Law (taking into consideration such Lender's ’s policies or and the policies of its such Xxxxxx’s holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender to be materialadequacy and liquidity), then, then from time to time, the each Borrower shall pay as provided in Section 2.09(c) to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such reduction upon demand by such Lender.
(c) A certificate of a Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 10 Business Days after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in ’s holding company for any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9reduction suffered.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after If the date of this Agreement any change in Applicable Law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, or (iii) shall impose on any Lender or the London Interbank Market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Loan or Fixed Rate Loan or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the Borrower shall pay such additional amount or amounts as will compensate such Lender for such increase or reduction to such Lender upon demand by such Lender.
(b) If, after the date of this Agreement, any Lender shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, special deposit, insurance or any change therein, after the date hereof in any of the foregoing or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office of such the Lender) 's holding company with any request or directive promulgated after the date hereof 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 the Lender's capital or on the capital of the Lender's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Revolving Loan made by the Lender to a level below that which such Lender (or its the Lender's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such the Lender's policies or and the policies of its the Lender's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such the Lender in good faith to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate the Lender's holding company for any such reduction suffered.
(b) Notwithstanding any other provision herein, if after the date of this Agreement any change in applicable law or regulation (either by way of changes in existing laws or regulations or the introductions of new laws or regulations) or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall change the basis of taxation of payments to the Lender of the principal of or interest on any LIBOR Borrowing made by the Lender, Fees or other amounts payable hereunder (other than changes in respect of taxes imposed on the net income of the Lender), or shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of or credit extended by the Lender, including without limitation any reserve requirement that may be applicable to "eurocurrency liabilities" under and as defined in Regulation D, or shall impose on the Lender or the London interbank market any other condition affecting this Agreement or any LIBOR Borrowing made by the Lender, and the result of any of the foregoing shall be to increase the cost to the Lender of making or maintaining any LIBOR Borrowing or to reduce the amount of any sum received or receivable by the Lender hereunder or under the Note (in respect of LIBOR Borrowing only), whether of principal, interest or otherwise, by an amount deemed by the Lender in good faith to be material, then, the Borrower will pay to the Lender upon demand such additional amount or amounts as will compensate the Lender for such additional costs incurred or reduction upon demand by such Lendersuffered.
(c) A certificate of a the Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such the Lender or its holding company as specified in paragraph (a) or (b) above, as the case may be, and (ii) setting forth in reasonable detail the calculation of manner in which such amount or amounts referred to in the preceding clause (i), shall have been determined shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate delivered by it within 10 Business Days ten (10) days after its receipt of the same.
(d) Failure on the part of any the Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such the Lender's rights right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Periodperiod. The protection of this Section 2.14 shall be available to each the Lender regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, guideline or other change or condition which shall have occurred or been imposed, provided that if the Lender is compensated for such increased costs or reduction by any Governmental Authority or third party in the event such invalidity or inapplicability is finally determined, then the Lender shall return to the Borrower the respective compensation paid by the Borrower, up to the lesser of such amount as is received by the Lender or such amount as was paid by the Borrower.
(e) Each Without prejudice to the survival of any other agreement contained herein, the agreements and obligations contained in this Section shall survive Termination, provided that the Borrower shall have no further obligation to the Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require unless a certificate setting forth the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender obligation shall have been delivered to by the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof above within ninety (90) calendar days after the Termination Date.
(f) The Lender shall give notification to the Borrower of any event or that any prospective event which will give rise to the operation of paragraphs (a) or (b) of this Section, such notification to be sent within thirty (30) days of the events designated in paragraph (e) hereof have occurred, date of the Borrower may (but subject in public promulgation of the effective date of any such case to the payments required by Section 2.17)law, provided that there shall exist no Default rule, regulation, guidelines or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9change therein.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) except for changes in respect of taxes imposed on the overall net income of such Lender or its lending office imposed by the jurisdiction in which such Lender has its Lender's principal executive office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which lending office is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmentlocated), or other governmental charge that would not have been imposed but for shall result in the failure imposition, modification or applicability of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, by any Lender, or (iii) shall impose result in the imposition on any Lender or the London Interbank Market interbank market of any other condition affecting this Agreement Agreement, such Lender's Commitment or any LIBOR Eurodollar Loan or Fixed Rate Loan made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the applicable Borrower shall or, if the foregoing circumstances do not relate to a particular Borrowing, the Borrowers shall, upon receipt of the notice and certificate provided for in Section 2.12(c), promptly pay to such Lender such additional amount or amounts as will compensate such Lender for such increase additional costs incurred or reduction suffered. Notwithstanding the foregoing, no Lender shall be entitled to request compensation under this paragraph with respect to any Competitive Loan if the change giving rise to such request was applicable to such Lender upon demand by at the time of submission of the Competitive Bid pursuant to which such LenderCompetitive Loan was made.
(b) If, after the date of this Agreement, If any Lender shall have determined in good faith that the adoption of any law, rule, regulation or guideline arising out of the July 1988 report of the Basle Committee on Banking Regulations and Supervisory Practices entitled "International Convergence of Capital Measurement and Capital Standards," or the adoption after the date hereof of any applicable other law, rule, regulation or guideline regarding capital adequacy, or any change therein, in any of the foregoing or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or any Lender's holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authorityauthority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's capital or on the capital of the such Lender's holding company, if any, as a consequence of its obligations hereunder this Agreement, such Lender's Commitment or the Loans made by such Lender pursuant hereto to a level below that which such Lender (or its such Lender's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or and the policies of its such Lender's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender to be material, then, then from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender time such additional amount or amounts as will compensate such Lender for any such reduction upon demand suffered will be paid by the Borrowers to such Lender. It is acknowledged that this Agreement is being entered into by the Lenders on the understanding that the Lenders will not be required to maintain capital against their Commitments under currently applicable laws, regulations and regulatory guidelines. In the event the Lenders shall otherwise determine that such understanding is incorrect, it is agreed that the Lenders will be entitled to make claims under this paragraph (b) based upon market requirements prevailing on the date hereof for commitments under comparable credit facilities against which capital is required to be maintained.
(c) A certificate of a each Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender or its holding company as specified in paragraph (a) or (b) above, as the case may be, and (ii) containing an explanation in reasonable detail of the calculation of manner in which such amount or amounts referred to in the preceding clause (i)shall have been determined, shall be delivered to the applicable Borrower or the Borrowers, as the case may be, and shall be conclusive absent manifest error. The Borrower Borrowers shall pay the Administrative Agent for the account of such each Lender the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same. Each Lender shall give prompt notice to the applicable Borrower of any event of which it has knowledge, occurring after the date hereof, that it has determined will require compensation by such Borrower pursuant to this Section; provided, however, that failure by such Lender to give such notice shall not constitute a waiver of such Lender's right to demand compensation hereunder.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such Lender's rights right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Period. The protection of this Section 2.14 period; provided, however, that no Lender shall be available entitled to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost compensation under this Section 2.15, Section 2.16, Section 2.21 2.12 for any costs incurred or Section 2.24(g) or (ii) would require reductions suffered with respect to any date unless it shall have notified the applicable Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), that it will use reasonable efforts to notify the Borrower of demand compensation for such event costs or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable reductions under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but above not more than 30 90 days after receipt the later of notice from (i) such Lender, identify to date and (ii) the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent date on which will purchase the Commitment, the amount it shall have become aware of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.costs or
Appears in 1 contract
Samples: 364 Day Competitive Advance and Revolving Credit Facility Agreement (Txu Electric Co)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date any Change in Law affecting any Lender or Issuing Bank or any lending office of this Agreement any change in Applicable Law such Lender’s or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) Issuing Bank’s holding company, if any, shall
(i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, of or credit extended byby any Lender or any Issuing Bank (except any such reserve requirement which is reflected in the Reserve Adjusted Eurodollar Rate), (ii) subject the Administrative Agent, any LenderLender or any Issuing Bank to any Taxes in connection with this Agreement or any Loan, Letter of Credit or Commitment made hereunder or its deposits, reserves, other liabilities or capital attributable thereto, or change the basis of taxation payments in respect thereof (except, in each case, (A) for Indemnified Taxes or Other Taxes indemnified pursuant to Section 2.20, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) or (iii) shall impose on any such Lender or such Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost (other than Taxes) to such Lender or such Issuing Bank of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan increase the cost (other than Taxes) to any Lender or any Issuing Bank of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material), then the Borrower shall will pay to such Lender or such Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or such Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or any Issuing Bank shall have determined that any Change in good faith that the adoption after the date hereof of Law regarding any applicable law, rule, regulation capital or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of 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, liquidity requirements has or would have the effect of reducing the rate of return on such Lender's ’s or such Issuing Bank’s capital or on the capital of the such Lender's ’s or such Issuing Bank’s holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by such Issuing Bank pursuant hereto to a level below that which such Lender (or its such Issuing Bank or such Lender’s or such Issuing Bank’s holding company) company could have achieved but for such applicability, adoption, change or compliance Change in Law (taking into consideration such Lender's ’s or such Issuing Bank’s policies or and the policies of its such Lender’s or such Issuing Bank’s holding companycompany with respect to capital adequacy), then from time to time the Borrower shall pay to such Lender or such Issuing Bank, as the case may be, with respect to capital adequacy) by an amount deemed by such Lender to be material, then, from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or an Issuing Bank setting forth in reasonable detail (i) such the calculation of the amount or amounts as shall be necessary to compensate such Lender or such Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender or such Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or any Issuing Bank to demand compensation pursuant to this Section 2.14 for any increased costs incurred or reduction suffered in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights ’s or such Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be under any obligation to compensate any Lender or any Issuing Bank under paragraph (a) or (b) above with respect to increased costs incurred or reductions suffered more than 180 days prior to the date such Lender or such Issuing Bank, as applicable, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation for therefor; provided further that the foregoing limitation shall not apply to any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection reductions arising out of this Section 2.14 shall be available to each Lender regardless the retroactive application of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposedChange in Law within such 180-day period.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Credit Agreement
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject result in the imposition, modification or applicability of any reserve, special deposit or similar requirement against assets or deposits with or for the account of or credit extended hereunder by any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate LoanIssuing Bank, or shall change result in the basis imposition on such Lender or any Issuing Bank or the London interbank market of taxation of payments to any Lender of the principal of other condition affecting this Agreement, such Lender's Commitment or interest on any LIBOR Eurodollar Loan or Fixed Rate Loan made by such Lender or any other fees Letter of Credit or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, or (iii) shall impose on any Lender or the London Interbank Market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan made by such LenderParticipation therein, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan or to increase the cost to such Lender or any Issuing Bank or participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or any Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the Borrower shall will pay to such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank, as the case may be, for such increase additional costs incurred or reduction suffered. Notwithstanding the foregoing, no Lender shall be entitled to request compensation under this paragraph with respect to any Competitive Loan if the change giving rise to such request was applicable to such Lender upon demand by at the time of submission of the Competitive Bid pursuant to which such LenderCompetitive Loan shall have been made.
(b) IfIf any Lender or Issuing Bank shall have determined that the applicability of any law, rule, regulation or guideline adopted after the date hereof pursuant to or arising out of this Agreementthe July 1988 report of the Basle Committee on Banking Regulations and Supervisory Practices entitled "International Convergence of Capital Measurement and Capital Standards", any Lender shall have determined in good faith that or the adoption after the date hereof of any applicable other law, rule, regulation or guideline regarding capital adequacy, or any change therein, in any of the foregoing or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authoritygovernmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender or Issuing Bank (or any Lending Office lending office of such Lender) or any Lender's or Issuing Bank's holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authorityauthority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's or such Issuing Bank's capital or on the capital of the such Lender's or such Issuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement, such Lender's Commitment or the Loans made by or participations in Letters of Credit held by such Lender pursuant hereto to a level below that which such Lender (or its such Issuing Bank or such Lender's or such Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or the Issuing Bank's policies or and the policies of its such Lender's or the Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or such Issuing Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender's or such Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a the Lender or an Issuing Bank setting forth in reasonable detail (i) such amount or amounts (including computation of such amount or amounts) as shall be necessary to compensate the Lender or such Lender Issuing Bank or its holding company, as the case may be, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower and shall such amount or amounts may be conclusive absent manifest errorreviewed by the Borrower. The Unless the Borrower disagrees in good faith with the computation of the amount or amounts in such certificate, the Borrower shall pay to the Administrative Agent for Lender or such Issuing Bank, within 10 Business Days after receipt by the account Borrower of such certificate delivered by the Lender or such Issuing Bank, the amount shown as due on any such certificate within 10 Business Days certificate. If the Borrower, after its receipt of any such certificate from the sameLender or such Issuing Bank, disagrees with the Lender or such Issuing Bank on the computation of the amount or amounts owed to the Lender or such Issuing Bank pursuant to paragraph (a) or (b) above, the Lender or such Issuing Bank and the Borrower shall negotiate in good faith to promptly resolve such disagreement. In either case, however, the Lender or such Issuing Bank, as the case may be, shall have a duty to mitigate the damages that may arise as a consequence of paragraph (a) or (b) above to the extent that such mitigation will not, in the judgment of the Lender or such Issuing Bank, entail any cost or disadvantage to the Lender or such Issuing Bank that the Lender or such Issuing Bank is not reimbursed or compensated for by the Borrower.
(d) Failure on the part of any Lender or any Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such Lender's rights or such Issuing Bank's right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Periodperiod. The protection of this Section 2.14 shall be available to each Lender and Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, guideline or other change or condition which shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: 364 Day Competitive Advance and Revolving Credit Facility Agreement (At&t Wireless Services Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if If after the date of this Agreement (or as provided in the last sentence of this Section 2.08(a)) any adoption, issuance or change in Applicable Law applicable law, rule or regulation regulation, guideline, request or directive or in the interpretation or administration thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof (whether or not having the force of lawlaw but with respect to which similarly situated banks generally comply) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest impose on any LIBOR Loan or Fixed Rate Loan made by such Lender Bank or any other fees or amounts payable hereunder Issuing Bank any Taxes (other than (xIndemnified Taxes and Excluded Taxes) taxes imposed on the overall net income its loans, loan principal, letters of such Lender by the jurisdiction in which such Lender has its principal office credit, commitments or other obligations, or its applicable Lending Office deposits, reserves, other liabilities or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement)capital attributable thereto, (ii) shall impose, modify or deem applicable any reserve, special deposit deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, Bank or any Issuing Bank or (iii) shall impose on any Lender Bank or any Issuing Bank or on the London Interbank Market interbank market any other cost or condition (other than Taxes), however denominated, affecting this Agreement or any LIBOR Loan or Fixed Rate Loan made by such LenderBank or any Letter of Credit issued by such Issuing Bank or any participations therein (any change referred to in any of the preceding clauses (i), (ii), or (iii) being called an “Increased Cost Change”), and the result of any of the foregoing shall be to increase the cost to such Lender Bank or Issuing Bank of making or maintaining any LIBOR Loan (or Fixed Rate Loan maintaining a Revolving Credit Commitment) or issuing or maintaining any Letter of Credit (or maintaining its obligation to issue Letters of Credit) or to reduce the amount of any sum received or receivable by such Lender Bank or Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender Bank or Issuing Bank to be material, then the Borrower shall pay then, subject to Section 2.08(d) hereof, such additional amount or amounts as will compensate such Lender Bank or Issuing Bank for such increase or reduction will be paid by the Company to such Lender upon demand Bank or Issuing Bank as provided in Section 2.08(c) hereof. Any such amount determined pursuant to this Section 2.08(a) shall be computed on the basis of the net effect of any Increased Cost Changes incurred by such Lender.
Bank or Issuing Bank from time to time after the Effective Date of this Agreement. For all purposes of this Section 2.08, (bx) Ifthe Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Regulations and Supervisory Practices (or any successor similar authority) or the United States or foreign financial regulatory authorities, in each case pursuant to Basel III, shall in each case, if they shall have any of the effects referred to in clauses (i), (ii) or (iii) of this Section 2.08(a), be deemed to be an “Increased Cost Change”, whether enacted, adopted, promulgated or issued before or after the date of this Agreement, any Lender shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change 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 any Lender (or any Lending Office of 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 capital or on the capital of the Lender's holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its holding company) could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or the policies of its holding company, as the case may be, with respect to capital adequacy) by an amount deemed by such Lender to be material, then, from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such reduction upon demand by such Lender.
(c) A certificate of a Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 10 Business Days after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period or any other Interest Period. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or Issuing Bank of the principal of or interest on any LIBOR Loan or Fixed Rate Eurodollar Revolving Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than (x) changes in respect of taxes imposed on the overall net income of such Lender or Issuing Bank by the jurisdiction in which such Lender or Issuing Bank has either its principal office or its applicable Lending Office lending office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, by any Lender, Lender or Issuing Bank (iiiexcept any such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall impose on any such Lender or Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Revolving Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or Issuing Bank of making or maintaining any LIBOR Eurodollar Revolving Loan or Fixed Rate Loan increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed determined in good faith by such Lender or Issuing Bank to be material, then the Borrower shall will pay to such Lender or Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or Issuing Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the date hereof in any such law, rule, regulation, agreement or any change guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or Issuing Bank or any Lender’s or Issuing Bank’s holding company 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, Authority has or would have the effect of reducing the rate of return on such Lender's ’s or the Issuing Bank’s capital or on the capital of the such Lender's ’s or Issuing Bank’s holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by such Issuing Bank pursuant hereto to a level below that which such Lender (or its Issuing Bank or such Lender’s or Issuing Bank’s holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's ’s or Issuing Bank’s policies or and the policies of its such Lender’s or Issuing Bank’s holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or Issuing Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to together with an explanation in the preceding clause (i)reasonable detail, shall be delivered to the Borrower Borrower. In determining any additional amounts owing under this Section 2.14, each Lender or Issuing Bank will act reasonably and shall be conclusive in good faith and will use averaging and attribution methods which are reasonable; provided that such Lender’s or Issuing Bank’s determination of compensation owing under this Section 2.14 shall, absent manifest error, unreasonableness or bad faith, be final and conclusive and binding on all parties hereto. The Borrower shall pay the Administrative Agent for the account of such Lender or Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days 15 days after its receipt of the same; provided that if the Borrower shall reasonably dispute such amount, the amount due shall be paid within three Business Days after such dispute is resolved.
(d) Failure or delay on the part of any Lender or Issuing Bank to demand compensation for any increased costs or reduction reductions in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights ’s or Issuing Bank’s right to demand compensation such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section for any increased costs or reduction reductions incurred more than 90 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the change in amounts received law or receivable or reduction in return on capital with respect other circumstance giving rise to such Interest Period increased costs or any reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the change in law or other Interest Periodcircumstance giving rise to such increased costs or reductions is retroactive, then the 90-day period referred to above shall be extended to include the period of retroactive effect thereof. The protection of this Section 2.14 shall be available to each Lender and Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement there is adopted any new Law or any change in Applicable applicable Law or regulation or in the interpretation interpretation, promulgation, implementation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special special-deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, by any Lender, Lender or (iii) shall impose on any Lender or the London Interbank Market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan made by such LenderTerm SOFR Loan, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Loan or Fixed Rate Term SOFR Loan or to reduce the amount of any sum received or receivable by such Lender hereunder or under any Notes (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the Borrower shall will pay to such Lender upon demand such additional amount or amounts as will compensate such Lender for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender shall have determined that the applicability of any Law adopted after the date hereof regarding capital adequacy or liquidity requirements, or any change in good faith that any of the foregoing or the adoption after the date hereof of any applicable law, rule, regulation change in any Law existing on the date hereof or guideline regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office of such lending office thereof) or any Lender) ’s holding company with any request or directive regarding capital adequacy or liquidity requirements (whether or not having the force of law) of any such Governmental Authorityauthority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's ’s capital or on the capital of the such Lender's ’s holding company, if any, as a consequence of its obligations hereunder with respect to this Agreement or any Loan to a level below that which such Lender (or its such Lender’s holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's ’s policies or and the policies of its such Xxxxxx’s holding company, as the case may be, company with respect to capital adequacyadequacy or liquidity) by an amount deemed by such Lender to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered. It is acknowledged that this Agreement is being entered into by the Lenders on the understanding that the Lenders will not be required to maintain capital against their obligations to make Loans under currently Laws, regulations and regulatory guidelines. In the event that any Lender shall be advised by any Governmental Authority, or shall otherwise determine on the basis of pronouncements of any Governmental Authority, that such understanding is incorrect, it is agreed that each such Lender will be entitled to make claims under this paragraph based upon demand by such Lendermarket requirements prevailing on the date hereof for commitments under comparable credit facilities against which capital is required to be maintained.
(c) A certificate of a Lender setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender or such Lender’s holding company as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of manner in which such amount or amounts referred to in Lender has determined the preceding clause (i)same, shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same, or such later date as such Lender may agree in writing (in its sole discretion).
(d) Failure on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period period shall not constitute a waiver of such Lender's rights ’s right to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Periodperiod. The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of the invalidity or inapplicability of the law, regulation Law or other change or condition which shall have occurred or been imposed.
(e) Each Lender agrees thatFor purposes of this Agreement, as promptly as practicable notwithstanding anything in this Agreement to the contrary, the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all rules, regulations, interpretations, agreements, guidelines, directives and requests in connection therewith are deemed to have been adopted, and to have gone into effect, after it becomes aware the date of this Agreement, regardless of the occurrence of an event date on which the same were actually adopted or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lenderwent into effect.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement (or in the case of any assignee of any Lender, the date of assignment) any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority governmental authority charged with the interpretation or administration thereof (whether or not having the force of law) ), or any change in GAAP or regulatory accounting principles applicable to the Agent or any Lender shall: (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or the Agent of the principal of or interest on any LIBOR Eurodollar Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable with respect to any Letter of Credit or otherwise hereunder (other than (x) taxes imposed on or based on or measured by the income or overall net income gross receipts of such Lender or the Agent by the jurisdiction in which such Lender or the Agent has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirementtherein), ; (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit loans or loan commitments extended by, any or Letters of Credit issued and maintained by, such Lender, ; or (iii) shall impose on any Lender or or, with respect to Eurodollar Loans, the London Interbank Market interbank market, any other condition affecting this Agreement Agreement, Letters of Credit issued and maintained by or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such Lender, ; and the result of any of the foregoing shall be to increase the cost to any such Lender of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan Letter of Credit, or to reduce the amount of any sum received or receivable by such Lender hereunder payment (whether of principal, interest interest, fee, compensation or otherwise) in respect thereof by an amount deemed in good faith receivable by such Lender or to be materialrequire such Lender to make any payment in respect of any Eurodollar Loan or Letter of Credit, then the Borrower shall pay to such Lender or the Agent, as the case may be, upon such Lender's or the Agent's demand, such additional amount or amounts as will compensate such Lender or the Agent for such increase additional costs or reduction reduction. The Agent and each Lender agree to give notice to the Borrower of any such change in law, regulation, interpretation or administration with reasonable promptness after becoming actually aware thereof and of the applicability thereof to the Transactions. Notwithstanding anything contained herein to the contrary, nothing in clause (i) or (ii) of this Section 2.10(a) shall be deemed to (x) permit the Agent or any Lender upon demand to recover any amount thereunder which would not be recoverable under Section 2.16 hereof or (y) require the Borrower to make any payment of any amount to the extent that such payment would duplicate any payment made by such Lender.the Borrower pursuant to Section 2.16 hereof
(b) If, If at any time and from time to time after the date of this AgreementAgree ment, any Lender shall have determined in good faith determine that the adoption after the date hereof of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change thereinin any applicable law, rule, regulation or guideline regarding capital adequacy, including, without limitation, the July 1988 report of the Basle Committee on Banking Regulations and Supervisory Practices entitled "International Convergence of Capital Measurement and Capital Standards" and any amendment or successor agreement in effect on the date hereof, or any change in the interpretation or administration of any thereof by any Governmental Authoritygovernmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any such Lender (or any Lending Office of such Lenderits lending office) with any request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authorityauthority, central bank or comparable agency, has or would will have the effect of reducing the rate of return on such Lender's capital or on the capital of the such Lender's holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its holding company) could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies or and the policies of its such Lender's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender to be material), then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such reduction upon reduction. Each Lender agrees to give notice to the Borrower of any adoption of, change in, or change in interpretation or administration of, any such law, rule, regulation or guideline with reasonable promptness after becoming actually aware thereof and of the applicability thereof to the Transactions. Notwith standing any other provision in this paragraph (b), none of any Lender or the Agent shall be entitled to demand by compensation pursuant to this paragraph (b) if it shall not be the general practice of such LenderLender or the Agent, as applicable, to demand such compensation in similar circumstances under comparable provisions of other comparable credit agreements.
(c) A certificate statement of a any Lender or the Agent setting forth in reasonable detail (i) such amount or amounts amounts, supported by calculations in reasonable detail, as shall be necessary to compensate such Lender (or the Agent) as specified in paragraph paragraphs (a) or and (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender or the Agent, as the case may be, the amount shown as due on any such certificate statement within 10 Business Days ten (10) days after its receipt of the same.
(d) Failure on the part of any Lender or the Agent to demand compensation compen sation for any increased costs or costs, reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period or any Letter of Credit or reduction in the rate of return earned on such Lender's capital, shall not constitute a waiver of such Lender's or the Agent's rights to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in rate of return on capital in such Interest Period or in any other Interest Period or with respect to such Interest Period or any other Interest PeriodLetter of Credit. The protection of under this Section 2.14 2.10 shall be available to each Lender and the Agent regardless of any possible contention of the invalidity or inapplicability of the any law, regulation or other condition which shall have been imposedgive rise to any demand by such Lender or the Agent for compensation. Notwithstanding the foregoing, the Borrower shall not be required to compensate a Lender or the Agent pursuant to this Section for any increased costs or reductions incurred more than six months prior to the date that such Lender or the Agent, as the case may be, notifies the Borrower of the change giving rise to such increased costs or reductions and of such Lender's or the Agent's intention to claim compensation therefor; provided that, if the change giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended by a period of time equal to the period from the date of such change through and including the earliest date of such retroactive effect.
(e) Each Any Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur claiming any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit payable pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, 2.10 agrees to use reasonable efforts (consistent with legal and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.regulatory
Appears in 1 contract
Samples: Credit Agreement (Kasper a S L LTD)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or Issuing Bank of the principal of or interest on any LIBOR Loan or Fixed Rate Eurodollar Revolving Loan made by such Lender or any Fees or other fees or amounts payable hereunder (other than (x) changes in respect of taxes imposed on the overall net income of such Lender or Issuing Bank by the jurisdiction in which such Lender or Issuing Bank has either its principal office or its applicable Lending Office lending office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessmenttherein), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, by any Lender, Lender or Issuing Bank (iiiexcept any such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall impose on any such Lender or Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Revolving Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or Issuing Bank of making or maintaining any LIBOR Eurodollar Revolving Loan or Fixed Rate Loan increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed determined in good faith by such Lender or Issuing Bank to be material, then the Borrower shall will pay to such Lender or Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or Issuing Bank shall have determined in good faith that the adoption after the date hereof of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the date hereof in any such law, rule, regulation, agreement or any change guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or Issuing Bank or any Lender’s or Issuing Bank’s holding company 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, Authority has or would have the effect of reducing the rate of return on such Lender's ’s or the Issuing Bank’s capital or on the capital of the such Lender's ’s or Issuing Bank’s holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by such Issuing Bank pursuant hereto to a level below that which such Lender (or its Issuing Bank or such Lender’s or Issuing Bank’s holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's ’s or Issuing Bank’s policies or and the policies of its such Lender’s or Issuing Bank’s holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or Issuing Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to together with an explanation in the preceding clause (i)reasonable detail, shall be delivered to the Borrower Borrower. In determining any additional amounts owing under this SectionSECTION 2.14, each Lender or Issuing Bank will act reasonably and shall be conclusive in good faith and will use averaging and attribution methods which are reasonable; provided that such Lender’s or Issuing Bank’s determination of compensation owing under this SectionSECTION 2.14 shall, absent manifest error, unreasonableness or bad faith, be final and conclusive and binding on all parties hereto. The Borrower shall pay the Administrative Agent for the account of such Lender or Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days 15 days after its receipt of the same; provided that if the Borrower shall reasonably dispute such amount, the amount due shall be paid within three Business Days after such dispute is resolved.
(d) Failure or delay on the part of any Lender or Issuing Bank to demand compensation for any increased costs or reduction reductions in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights ’s or Issuing Bank’s right to demand compensation such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section for any increased costs or reduction reductions incurred more than 90 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the change in amounts received law or receivable or reduction in return on capital with respect other circumstance giving rise to such Interest Period increased costs or any reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the change in law or other Interest Periodcircumstance giving rise to such increased costs or reductions is retroactive, then the 90 day period referred to above shall be extended to include the period of retroactive effect thereof. The protection of this Section 2.14 shall be available to each Lender and Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the date of this Agreement any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxes) or (y) any tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any Lender, or (iii) shall impose on by any Lender or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or the Issuing Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Eurodollar Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender or the Issuing Bank of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or the Issuing Bank to be material, then the Borrower shall will pay to such Lender or the Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) If, after the date of this Agreement, If any Lender or the Issuing Bank shall have determined in good faith that the adoption after the date hereof Closing Date of any applicable law, rule, regulation regulation, agreement or guideline regarding capital adequacy, or any change thereinafter the Closing Date in any such law, rule, regulation, agreement or any change guideline (whether or not having the force of law) or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any Lending Office lending office of such Lender) or the Issuing Bank or any Lender's or the Issuing Bank's holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, central bank Authority made or comparable agency, issued after the Closing Date has or would have the effect of reducing the rate of return on such Lender's or the Issuing Bank's capital or on the capital of such Lender's or the LenderIssuing Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender (or its the Issuing Bank or such Lender's or the Issuing Bank's holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's or the Issuing Bank's policies or and the policies of its such Lender's or the Issuing Bank's holding company, as the case may be, company with respect to capital adequacy) by an amount deemed by such Lender or the Issuing Bank to be material, then, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a Lender or the Issuing Bank setting forth in reasonable detail (i) such the amount or amounts as shall be necessary to compensate such Lender or the Issuing Bank or its respective holding company, as applicable, as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay the Administrative Agent for the account of such Lender or the Issuing Bank the amount shown as due on any such certificate delivered by it within 10 Business Days days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's rights or the Issuing Bank's right to demand such compensation; provided that neither any Lender nor the Issuing Bank shall be entitled to compensation under this Section 2.14 for any increased costs or reduction in amounts received reductions incurred or receivable or reduction in return on capital suffered with respect to any date unless such Interest Period Lender or any other Interest Periodthe Issuing Bank, as the case may be, shall have notified the Borrower under paragraph (c) above, not more than 90 days after the later of (i) such date and (ii) the date on which such Lender or Issuing Bank, as applicable, shall have become aware of such costs or reductions. The protection of this Section 2.14 shall be available to each Lender and the Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, regulation rule, regulation, agreement, guideline or other change or condition which that shall have occurred or been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur any increased cost under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition and, to the extent not inconsistent with such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurred, the Borrower may (but subject in any such case to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9.
Appears in 1 contract
Samples: Credit Agreement (Pacificorp /Or/)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinherein (but subject to paragraph (d) below and Section 2.21), if after the date of this Agreement any Lender or Fronting Bank becomes a Lender or Fronting Bank hereunder any change in Applicable Law applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall subject any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of payments to any Lender or any Fronting Bank, as applicable, of the principal of or interest on any LIBOR Loan or Fixed Rate Loan made by such Lender or any other Letter of Credit or participation therein or any fees or other amounts payable hereunder (other than changes in respect of Taxes referred to in clause (x) taxes imposed on the overall net income of such Lender by the jurisdiction in which such Lender has its principal office or its applicable Lending Office or by any political subdivision or taxing authority therein (or any tax which is enacted or adopted by such jurisdiction, political subdivision or taxing authority as a direct substitute for any such taxesa) or (yb) any tax, assessmentof the definition of “Excluded Taxes”), or other governmental charge that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation or other reporting requirement), (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, of or credit extended by, any Lender, by such Lender or Fronting Bank (iiiother than a reserve requirement reflected in the calculation of an applicable Adjusted LIBO Rate) or shall impose on any Lender such Lender, such Fronting Bank or the London Interbank Market interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan Loans made by such LenderLender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR such Loan or Fixed Rate Loan to increase the cost to such Lender or such Fronting Bank of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or such Fronting Bank hereunder (whether of principal, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be material, then the Borrower shall Borrowers will pay to such Lender or such Fronting Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Fronting Bank for such increase additional costs incurred or reduction to such Lender upon demand by such Lendersuffered.
(b) IfSubject to Section 2.21, after the date of this Agreement, if any Lender or any Fronting Bank shall have determined in good faith that the adoption after the date hereof any Lender or Fronting Bank becomes a Lender or Fronting Bank hereunder of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, after such date in any of the foregoing or any change in the interpretation or administration thereof of any of the foregoing by any Governmental Authority, central bank or comparable agency Authority charged with the interpretation or administration thereof, or compliance by any Lender or any Fronting Bank (or any Lending Office lending office of such Lender or Fronting Bank) or any Lender) ’s or any Fronting Bank’s holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of made or promulgated after such date by 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 ’s or such Fronting Bank’s capital or on the capital of the such Lender's ’s or such Fronting Bank’s holding company, if any, as a consequence of its obligations hereunder under this Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by any Fronting Bank, pursuant hereto to a level below that which such Lender (or its such Fronting Bank or such Lender’s or such Fronting Bank’s holding company) company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such Lender's policies ’s or the policies of its holding company, as the case may be, such Fronting Bank’s guidelines with respect to capital adequacy) by an amount deemed by such Lender or such Fronting Bank to be material, then, then from time to time, time the Borrower Borrowers shall pay to the Administrative Agent for the account of such Lender or such Fronting Bank such additional amount or amounts as will compensate such Lender or such Fronting Bank or such Lender’s or such Fronting Bank’s holding company for any such reduction upon demand by such Lendersuffered.
(c) A certificate of a each Lender or any Fronting Bank setting forth in reasonable detail (i) such amount or amounts as shall be necessary to compensate such Lender or Fronting Bank (or its participating banks or other entities pursuant to Section 10.07) as specified in paragraph (a) or (b) above, as the case may be, and (ii) the calculation of such amount or amounts referred to in the preceding clause (i), shall be delivered to the Borrower Borrowers and shall be conclusive absent manifest error. The Borrower Except as provided in paragraph (d) below, the Borrowers shall pay the Administrative Agent for the account of such each Lender or Fronting Bank the amount shown as due on any such certificate delivered by such Lender or Fronting Bank within 10 Business Days thirty (30) days after its receipt of the same. Each Lender or Fronting Bank shall submit such a certificate no more often than monthly; provided, however, that certificates with respect to amounts due with respect to identifiable Loans may be submitted at the ends of such Loans’ Interest Periods.
(d) Failure on the part of any Lender or Fronting Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any Interest Period shall not constitute a waiver of such Lender's ’s or Fronting Bank’s rights with respect to any period to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to such Interest Period period or any other Interest Periodperiod; provided, however, that neither any Lender nor any Fronting Bank shall be entitled to compensation under this Section 2.14 for any costs incurred or reductions suffered more than ninety (90) days prior to the date on which it shall have requested compensation therefor; provided further, that if the Change in Law that shall give rise to any such costs or reductions shall be retroactive, then the ninety (90)-day period referred to above shall be extended to include the period of retroactive effect thereof. The protection Notwithstanding any other provision of this Section 2.14 2.14, neither any Lender nor any Fronting Bank shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it to incur demand compensation for any increased cost or reduction referred to above if it shall not at the time be the general policy or practice of such Lender or such Fronting Bank to demand such compensation in similar circumstances under this Section 2.15comparable provisions of other credit agreements, Section 2.16, Section 2.21 if any. If any Lender or Section 2.24(gany Fronting Bank shall receive as a refund any moneys from any source that it has listed on the certificate provided pursuant to (c) or (ii) would require the Borrower to pay above as an increased amount under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g), it will use reasonable efforts to notify the Borrower of such event or condition andcost, to the extent not inconsistent with that the Borrowers have previously paid such Lender's internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans of such Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder in respect of such Loans or Letters of Credit would be materially reduced, or any inability to perform would cease to exist, or the increased costs which would otherwise be required to be paid in respect of such Loans or Letters of Credit pursuant to this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced or the taxes or other amounts otherwise payable under this Section 2.15, Section 2.16, Section 2.21 or Section 2.24(g) would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the Borrower a notice that LIBOR Loans are no longer available from such Lender pursuant to Section 2.16, that amounts are due cost to such Lender pursuant to paragraph (c) hereof or that any of the events designated in paragraph (e) hereof have occurredsuch Fronting Bank, the Borrower may (but subject in any such case Lender or Fronting Bank shall promptly forward such refund to the payments required by Section 2.17), provided that there shall exist no Default or Event of Default, upon at least five Business Days' prior written or telecopier notice to such Lender and the Administrative Agent, but not more than 30 days after receipt of notice from such Lender, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Commitment, the amount of outstanding Loans and any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Commitment, any Loans owing to such Lender and any participations in Letters of Credit and the Notes held by such Lender to such replacement lending institution pursuant to Section 9Borrowers without interest.
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Equistar Chemicals Lp)
