Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the Closing Date any Regulatory Change (i) subjects any Lender to any Taxes (other than (x) Non-Excluded Taxes or Taxes described in clause (i) or (ii) of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (ii) shall impose, modify, or deem applicable any reserve, special deposit, or similar requirement with respect to any LIBOR Loan (or participating interest therein), against assets of, deposits with or for the account of, or credit extended by, such Lender under this Agreement, or (iii) with respect to any LIBOR Loan, shall impose on such Lender or the London interbank market any other condition affecting this Agreement or any LIBOR 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 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 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, to the extent such amounts have not been included in the calculation of the LIBOR Rate, upon demand by such Lender (through the Administrative Agent). (b) If any Lender shall have determined in good faith that any Regulatory Change regarding capital or liquidity requirements or compliance by any Lender (or its Parent or any lending office of such Lender) with any request or directive regarding capital or liquidity requirements (whether or not having the force of Law) of any Tribunal, monetary authority, central 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 as a consequence of its obligations hereunder to a level below that which such Lender (or its Parent) could have achieved but for such Regulatory Change, or compliance (taking into consideration such Lender’s policies with respect to capital and liquidity requirements) by an amount deemed in good faith 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 (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, (iii) the calculation of such amount or amounts under clause (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 error 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 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) The protection of this Section 2.10 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) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of 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 or Notes.
Appears in 5 contracts
Samples: Credit Agreement (Qwest Corp), Credit Agreement (Lumen Technologies, Inc.), Credit Agreement (Centurylink, Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the Closing Date date of this Agreement any Regulatory Change (i) subjects any Lender to any Taxes (other than (x) Non-Excluded Taxes in Law shall result in the imposition, modification or Taxes described in clause (i) or (ii) applicability of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (ii) shall impose, modify, or deem applicable any reserve, special deposit, deposit or similar requirement with respect to any LIBOR Loan (or participating interest therein), against assets of, deposits with or for the account of, of or credit extended by, such Lender under this Agreementby any Credit Party, or (iii) with respect to shall result in the imposition on any LIBOR Loan, shall impose on such Lender Credit Party or the London interbank market of any other condition affecting this Agreement Agreement, such Credit Party’s Commitment or any LIBOR Eurocurrency Loan or Fixed Rate Loan made by such LenderCredit Party or any Letter of Credit, and the result of any of the foregoing shall be to increase the cost to such Lender Credit Party 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 Credit Party hereunder (whether of principal, interest, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender Credit Party 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 Credit Party for such increase additional costs or reduction will be paid by the Borrowers to such LenderCredit Party upon demand. Notwithstanding the foregoing, no Credit Party shall be entitled to request compensation under this paragraph, (A) with respect to any Competitive Loan made by such Credit Party if the extent Change in Law giving rise to such amounts have not been included in request was applicable to such Credit Party at the calculation time of submission of the LIBOR RateCompetitive Bid pursuant to which such Competitive Loan was made or issued, upon demand or (B) with respect to any Change in Law in respect of costs imposed on such Lender or Issuing Bank under the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or Basel III (x) if the applicable Change in Law and the resulting costs shall have become fully effective without the need for any further legislative or regulatory action, and such increased costs shall have been determined by such Lender Credit Party, in each case prior to July 20, 2011, or (through y) if it shall not be the Administrative Agent)general policy or practice of such Credit Party to seek compensation in similar circumstances under similar provisions in comparable credit facilities, as determined in good faith by such Credit Party.
(b) If any Lender Credit Party shall have determined in good faith that any Regulatory Change in Law regarding capital or liquidity requirements or compliance by any Lender (or its Parent or any lending office of such Lender) with any request or directive regarding capital or liquidity requirements (whether or not having the force of Law) of any Tribunal, monetary authority, central bank, or comparable agency, adequacy has or would have the effect of reducing the rate of return on such LenderCredit Party’s (capital or its Parent’s) on the capital of such Credit Party’s holding company, if any, as a consequence of its obligations hereunder this Agreement, such Credit Party’s Commitment or the Loans made or Letters of Credit issued by such Credit Party pursuant hereto to a level below that which such Lender (Credit Party or its Parent) such Credit Party’s holding company could have achieved but for such Regulatory Change, or compliance Change in Law (taking into consideration such LenderCredit Party’s policies and the policies of such Credit Party’s holding company with respect to capital and liquidity requirementsadequacy) by an amount deemed in good faith by such Lender Credit Party to be material, 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 Credit Party for such reduction upon demand will be paid by the Borrowers to such Lender (through the Administrative Agent)Credit Party.
(c) A certificate of a Lender any Credit Party 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 Credit Party or its holding company as specified in paragraph (a) or (b) above, as the case may be, (iii) the calculation of such amount or amounts under clause (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, Company and shall be conclusive and binding absent manifest error and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower Borrowers shall pay to the Administrative Agent for the account of such Lender Credit Party the amount shown as due on any such certificate delivered by it within 15 10 days after its receipt of the same.
(d) Failure on the part of any Credit Party to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any period shall not constitute a waiver of such Credit Party’s right to demand compensation with respect to such period or any other period; provided that the Borrower Borrowers shall not be required to pay the Administrative Agent for the account of such Lender compensate any Credit Party pursuant to this Section 2.10 for any amount specified in clause (a) increased costs or (b) above in respect of a period occurring expenses incurred or reductions suffered more than 180 90 days prior to the date on which that such Lender Credit Party notifies the Borrower Company of the Change in Law giving rise to such increased costs or expenses or reductions and of such Regulatory Change and such LenderCredit Party’s intention to claim compensation therefor, except; provided further that, if the Regulatory Change in Law giving rise to any amount specified in clause (a) such increased costs or (b) above expenses or reductions is retroactive, no such time limitation then the 90-day period referred to above shall apply so long as such Lender requests compensation within 180 days from be extended to include the date on which the applicable Tribunal informed such Lender period of such Regulatory Changeretroactive effect thereof. 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) The protection of this Section 2.10 shall be available to each Lender Credit Party regardless of any possible contention of the invalidity or inapplicability of the law, regulation, or condition Change in Law which shall have occurred or been imposed.
(e) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of 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 or Notes.
Appears in 5 contracts
Samples: Credit Facility Agreement (Xylem Inc.), Credit Facility Agreement (Exelis Inc.), Credit Facility Agreement (ITT Corp)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinherein other than Section 2.14(c), if after the Closing Date any Regulatory Change in Law shall:
(i) subjects impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or any Issuer;
(ii) impose on any Lender or any Issuer or the London interbank market or other market in which Lenders ordinarily raise Dollars or Euros, as applicable, to fund Loans of the requested Type, or any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein; or
(iii) subject the Administrative Agent, any Lender or any Issuer to any Taxes (other than (xA) Non-Indemnified Taxes indemnifiable pursuant to Section 2.18 and (B) Excluded Taxes or Taxes described in clause (i) or (ii) of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial positionTaxes) on its loans, loan principal principal, letters of credit, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (ii) shall impose, modify, or deem applicable any reserve, special deposit, or similar requirement with respect to any LIBOR Loan (or participating interest therein), against assets of, deposits with or for the account of, or credit extended by, such Lender under this Agreement, or (iii) with respect to any LIBOR Loan, shall impose on such Lender or the London interbank market any other condition affecting this Agreement or any LIBOR Loan made by such Lender, ; and the result of any of the foregoing shall be to increase the cost to such Lender of making funding, making, converting, continuing or maintaining any LIBOR Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender or such Issuer 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 Issuer 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 (or, with respect to the US Letters of Credit, Holdings) will pay to the Administrative Agent for the account of such Lender or such Issuer, as applicable, upon demand such additional amount or amounts as will compensate such Lender or such Issuer, as applicable for such increase additional costs or expenses incurred or reduction to such Lender, to the extent such amounts have not been included in the calculation of the LIBOR Rate, upon demand by such Lender (through the Administrative Agent)suffered.
(b) If any Lender shall have determined in good faith or any Issuer reasonably determines that any Regulatory Change in Law regarding capital adequacy or liquidity requirements or compliance by any Lender (or its Parent or any lending office of such Lender) with any request or directive regarding capital or liquidity requirements (whether or not having the force of Law) of any Tribunal, monetary authority, central bank, or comparable agency, has had or would have the effect of reducing the rate of return on the capital of such Lender’s (Lender or its Parent’s) capital Issuer or any holding company of such Lender or Issuer by an amount reasonably determined by such Lender or Issuer or such holding company as a consequence of its this Agreement, the Commitments of each Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit Issued by such Issuer, or such Lender’s or Issuer’s obligations hereunder to a level below that which such Lender (or its Parent) could have achieved but for such Regulatory Change, or compliance (taking into consideration such Lender’s or Issuer’s policies and the policies of such Lender’s or such Issuer’s holding company with respect to capital adequacy and/or liquidity and liquidity requirements) by an amount deemed in good faith by such Lender to be materialLender’s or such Issuer’s desired return on capital), then from time to timetime upon demand of such Lender or such Issuer (with a copy of such demand to the Administrative Agent), the Borrower (or, with respect to the US Letters of Credit, Holdings) shall pay to the Administrative Agent for the account of such Lender or such Issuer such additional amount or amounts as will compensate such Lender or such Issuer or such Lender’s or such Issuer’s holding company for such reduction upon demand reduction; provided, that such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by such Lender (through Holdings or the Administrative Agent)Borrower, as the case may be, under any other provision of this Agreement.
(c) A certificate of a each Lender or Issuer 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 or such Issuer or its Parent Company as specified in paragraph (a) or (b) above, as the case may be, (iii) together with a statement of reasons for such demand and showing the calculation of for such amount or amounts under clause (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 error and (iv) confirmation from error. Notwithstanding any other provision of this Section, no Lender shall demand compensation for any increased cost or reduction pursuant to this Section in respect of any Change in Law described in the proviso to the definition of the term “Change in Law” unless such certificate states that it is the general policy or practice of such Lender that or Issuer to demand such costs are also being assessed compensation in similar circumstances from similarly-situated borrowers under similar credit facilities (to other similarly situated borrowersthe extent such Lender or Issuer has the right under such similar credit facilities to do so). The Borrower shall pay or cause to the Administrative Agent for the account of such be paid to each Lender the amount shown as due on any such certificate delivered by it within 15 ten (10) 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) Except as provided in this paragraph, failure or delay on the part of any Lender or Issuer to demand compensation pursuant to this Section with respect to any period shall not constitute a waiver of such Lender’s or such Issuer’s right to demand compensation with respect to such period or any other period. The protection of this Section 2.10 2.12 shall be available to each Lender and to each Issuer regardless of any possible contention of the invalidity or inapplicability of the law, rule, regulation, guideline or other change or condition which shall have occurred or been imposed.
(e) Without prejudice . No Lender or Issuer shall be entitled to the survival of any other obligations of the Borrower hereunder, the obligations of the Borrower compensation under this Section 2.10 2.12 for any costs or expenses incurred or reductions suffered with respect to any date unless it shall survive have notified the Borrower that it will demand compensation for one year such costs or reductions under paragraph (c) above not more than 120 days after the termination later of (i) such date and (ii) the date on which it shall have or reasonably should have become aware of such costs or reductions; provided that if the applicable Change in Law giving rise to such costs, expenses or reductions is retroactive, then the 120 day period referred to above shall be extended to include the period of retroactive effect thereof. In the event the Borrower or Holdings shall reimburse any Lender pursuant to this Agreement and/or Section 2.12 for any cost and the payment Lender shall subsequently receive a refund in respect thereof, the Lender shall so notify Holdings or assignment the Borrower, as applicable, and shall pay to Holdings or the Borrower, as applicable the portion of any of such refund which it shall determine in good faith to be allocable to the Loans or Notescost so reimbursed.
Appears in 4 contracts
Samples: Revolving Credit Agreement (Alcoa Corp), Revolving Credit Agreement (Alcoa Upstream Corp), Revolving Credit Agreement (Alcoa Upstream Corp)
Reserve Requirements; Change in Circumstances. (a) It is understood that the cost to the Bank of making or maintaining any of the Advances may fluctuate as a result of the applicability of, or changes in, reserve requirements imposed by the Board of Governors of the Federal Reserve System. The 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 for the portion of the cost of making or maintaining Advances resulting from any such reserve requirements to the extent set forth in this Section.
(b) Notwithstanding any other provision herein, if after the Closing Date date of this Agreement the introduction of any Regulatory Change applicable law or regulation or 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, 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) subjects shall change the basis of taxation of payments to the Bank of the principal of or interest on any Lender to Advance made by the Bank or any Taxes (other fees or amounts payable hereunder, other than (x) Non-Excluded Taxes taxes imposed on the overall net income or Taxes described franchise taxes with respect to the Bank or its lending office by the jurisdiction in clause which the Bank or its lending office has its principal office or by any political subdivision or taxing authority therein (i) or (ii) of the first sentence in Section 2.19(aany 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 tax, 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, documentation or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligationsrequirement, 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 participating interest therein), against assets of, deposits with or for the account of, or credit extended by, such Lender under this Agreement, or (iii) with respect to any LIBOR Loan, shall impose on such Lender or by the London interbank market any other condition affecting this Agreement or any LIBOR Loan made by such LenderBank, and the result of any of the foregoing shall be to increase the cost to such Lender the Bank of making or maintaining any LIBOR Loan its Commitment or to reduce the amount of any sum received or receivable by such Lender the Bank hereunder (whether of principal, interest, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender the Bank to be material, then the Borrower shall pay to the Administrative Agent for the account of such Lender Bank such additional amount or amounts as will compensate such Lender the Bank for such increase or reduction to such Lender, to the extent such amounts have not been included in the calculation of the LIBOR Rate, upon demand by such Lender (through the Administrative Agent)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 any Lender the Bank shall have determined in good faith that the adoption of any Regulatory Change applicable law, rule, regulation or guideline regarding capital adequacy, or liquidity requirements 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 the Bank (or its Parent or any lending office of such Lenderthe Bank) with any request or directive regarding capital or liquidity requirements adequacy (whether or not having the force of Lawlaw) of any Tribunal, monetary such authority, central bank, bank or comparable agencyagency (including any capital adequacy guidelines under consideration as of the date of this Agreement by the Board of Governors of the Federal Reserve System and the Comptroller of the Currency) (except any such adoption or change reflected in the Adjusted LIBO Rate), has or would have the effect of reducing the rate of return on such Lenderthe Bank’s (capital or its Parent’s) any corporation controlling the Bank’s capital as a consequence of its obligations hereunder to a level below that which such Lender (or its Parent) the Bank could have achieved but for such Regulatory Changeadoption, change or compliance (taking into consideration such Lenderthe Bank’s policies with respect to capital and liquidity requirementsadequacy) by an amount deemed in good faith by such Lender the Bank to be material, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender Bank such additional amount or amounts as will compensate such Lender the Bank for such reduction upon demand by such Lender (through the Administrative Agent)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.
(cd) If the Bank seeks compensation under this Agreement it will notify the Borrower of any event occurring after the date of this Agreement which will entitle the Bank to compensation pursuant to this Section, as promptly as practicable, and in any event within 180 days after it becomes aware thereof and determines to request compensation. A certificate of a Lender the Bank 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 the Bank as specified in paragraph (a) or (b) above, as the case may be, and (iiiii) the calculation of such amount or amounts under clause (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 error and (iv) confirmation from prima facie evidence of such Lender that such costs are also being assessed to other similarly situated borrowersamount or amounts. The Borrower shall pay to the Administrative Agent for the account of such Lender Bank the amount shown as due on any such certificate within 15 ten days after its receipt of the same; .
(e) Failure on the part of the 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 Advance shall not constitute a waiver of the Bank’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 Advance, provided that the Borrower shall not be required Borrower’s obligation to pay the Administrative Agent for Bank shall be limited to the account of such Lender pursuant increased costs or reduced amount that is attributable to this Section 2.10 for any amount specified in clause (a) or (b) above in respect of a the period occurring more than commencing 180 days prior to the date on which such Lender notifies the Bank gives 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.
notice under subsection (d) hereof. The protection of this Section 2.10 shall be available to each Lender the Bank regardless of any possible contention of invalidity or inapplicability of the law, regulation, regulation or condition which shall have that has been imposed.
(e) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of 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 or Notes.
Appears in 3 contracts
Samples: Credit Agreement (Flotek Industries Inc/Cn/), Credit Agreement (Flotek Industries Inc/Cn/), Credit Agreement (Flotek Industries Inc/Cn/)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the Closing Date any Regulatory Change if, by reason of (i) subjects after the Effective Date, the introduction of or any Lender to change (including any Taxes (other than (xchange by way of imposition or increase of reserve requirements) Non-Excluded Taxes in or Taxes described in clause (i) the interpretation of any law or regulation, or (ii) of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply compliance with any certification, information, documentation, guideline or request from any central bank or other reporting Governmental Authority or quasi-Governmental Authority exercising control over banks or financial institutions generally (whether or not having the force of law), any reserve (including any imposed by the Federal Reserve Board), special deposit or similar requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (ii) shall impose, modify, or deem applicable any including a reserve, special deposit, deposit or similar requirement with respect to any LIBOR Loan (or participating interest therein), that takes the form of a tax) against assets of, deposits with or for the account of, or credit extended by, such Lender under this Agreement, any Participant's office through which it funds its obligations hereunder shall be imposed or (iii) with respect to any LIBOR Loan, shall impose on such Lender deemed applicable or the London interbank market any other condition affecting this Agreement its obligation to make or any LIBOR Loan made by such Lender, and maintain its Funded Participant's Interest at a rate based upon the result of any of the foregoing Adjusted LIBO Rate shall be to imposed on any Participant or its office through which it funds its obligations hereunder or the interbank Eurodollar market; and as a result thereof there shall be any increase in the cost to such Lender Participant of making agreeing to make or making, funding or maintaining any LIBOR Loan funds its obligations hereunder (except to the extent already included in the determination of the applicable Adjusted LIBO Rate), or to reduce there shall be a reduction in the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest, that Participant or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be materialits office through which it funds its obligations hereunder, then the Borrower Sponsor shall from time to time, upon written notice from and demand by the Participant (with a copy of such notice and demand to the Servicer), pay to the Administrative Agent Servicer for the account of that Participant within five Business Days after the date specified in such Lender notice and demand, additional amounts sufficient to indemnify that Participant against such additional amount or amounts increased cost. A certificate as will compensate such Lender for such increase or reduction to such Lender, to the extent amount of such amounts have not been included in increased cost submitted to the calculation of Sponsor and the LIBOR RateServicer by that Participant, upon demand by such Lender (through the Administrative Agent)shall, except for manifest error, be final, conclusive and binding for all purposes.
(b) If while the Commitment or any Lender shall have determined in good faith Loan Commitments are outstanding, any Participant (including any the Servicer) determines that the adoption of any Regulatory Change law, rule or regulation regarding capital adequacy or liquidity requirements capital maintenance, or any change in any of the foregoing or 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 Participant (or its Parent or any lending office of such LenderParticipant) or any Participant's holding company with any request or directive regarding capital adequacy or liquidity requirements capital maintenance (whether or not having the force of Lawlaw) of any Tribunal, monetary such authority, central bank, bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s (Participant's capital or its Parent’s) on the capital of such Participant's holding company, if any, as a consequence of its obligations hereunder this Agreement, the Loan Documents or the purchases made by such Participant pursuant hereto to a level below that which such Lender (Participant or its Parent) such Participant's holding company could have achieved but for such Regulatory Changeadoption, change or compliance (taking into consideration such Lender’s Participant's policies and the policies of such Participant's holding company with respect to capital and liquidity requirementsadequacy) by an amount reasonably deemed in good faith by such Lender Participant to be material, then from time to time, within 15 days after written demand by such Participant, the Borrower shall Sponsor pay to the Administrative Agent for the account of such Lender Participant such additional amount or amounts as will compensate such Lender Participant or such Participant's holding company for such reduction upon demand reduction. A certificate as to the amount of any such additional amount or amounts, submitted to the Sponsor and the Servicer by such Lender (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 costsParticipant, (ii) such amount or amounts as shall shall, except for manifest error, be necessary to compensate such Lender as specified in paragraph (a) or (b) abovefinal, as the case may be, (iii) the calculation of such amount or amounts under clause (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 error 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 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 methodall purposes.
(d) The protection of this Section 2.10 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) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of 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 or Notes.
Appears in 2 contracts
Samples: Loan Facility Agreement (Ruby Tuesday Inc), Loan Facility Agreement (Ruby Tuesday Inc)
Reserve Requirements; Change in Circumstances. 34 48429166.1
(a) Notwithstanding any other provision herein, if after the Closing Date any Regulatory Change (i) subjects any Lender to any Taxes (other than (x) Non-Excluded Taxes or Taxes described in clause (i) or (ii) of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, or (ii) shall impose, modify, or deem applicable any reservereserve (including pursuant to regulations issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency, special, supplemental or other marginal reserve requirement) with respect to eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D)), special deposit, or similar requirement with respect to any LIBOR LIBORTerm SOFR Rate Loan (or participating interest therein), against assets of, deposits with or for the account of, or credit extended by, such Lender under this Agreement, or (iii) with respect to any LIBOR Loan, shall impose on such Lender or the London interbank market any other condition affecting this Agreement or any LIBOR 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 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 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, to the extent such amounts have not been included in the calculation of the LIBOR RateRateinterest rate applicable to such Loan, upon demand by such Lender (through the Administrative Agent).
(b) If any Lender shall have determined in good faith that any Regulatory Change regarding capital or liquidity requirements or compliance by any Lender (or its Parent or any lending office of such Lender) with any request or directive regarding capital or liquidity requirements (whether or not having the force of Law) of any Tribunal, monetary authority, central 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 as a consequence of its obligations hereunder to a level below that which such Lender (or its Parent) could have achieved but for such Regulatory Change, or compliance (taking into consideration such Lender’s policies with respect to capital and liquidity requirements) by an amount deemed in good faith 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 (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, (iii) the calculation of such amount or amounts under clause (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 error 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 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 LenderXxxxxx’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 35 48429166.1 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) The protection of this Section 2.10 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) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of the Borrower under this Section 2.10 shall survive for one (1) year after the termination of this Agreement and/or the payment or assignment of any of the Loans or Notes.
Appears in 2 contracts
Samples: Credit Agreement (Qwest Corp), Credit Agreement (Lumen Technologies, Inc.)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the Closing Date date of this Agreement any Regulatory Change change in applicable law or regulation (including (i) subjects any change in the reserve percentages provided for in Regulation D, (ii) all requests, rules, guidelines, requirements and directives concerning capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or by United States or foreign regulatory authorities, in each case pursuant to Basel III (collectively, “Basel III”), and (iii) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof (collectively, “Xxxx-Xxxxx”)) or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof shall change the basis of taxation of payments to any Lender to of the principal of or interest on any Taxes Eurocurrency Loan or Absolute Rate Loan made by such Lender (other than 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 (x) Non-Excluded Taxes or Taxes described in clause (iwhich it holds any Eurocurrency Loan or Absolute Rate Loan) or (ii) of the first sentence in Section 2.19(a) by any political subdivision or (y) any Tax taxing authority therein and other than taxes that would not have been imposed but for the failure of any such Lender to comply with any applicable certification, information, documentation, documentation or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligationsrequirements), 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 participating interest therein), against assets of, of or deposits with or for the account ofof such Lender, or credit extended by, such Lender under this Agreement, or (iii) with respect to any LIBOR Loan, shall impose on such Lender or the London interbank market any other condition affecting this Agreement or any LIBOR Eurocurrency Loan or Absolute 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 Absolute 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 of any Eurocurrency Loan or Absolute Rate Loan by an amount deemed in good faith by such Lender to be material, then the relevant Borrower shall agrees to pay to the Administrative Agent for the account of such Lender as provided in paragraph (c) below 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 Lenderrequest shall, or in good faith should, have been taken into account in formulating the Competitive Bid pursuant to the extent which such amounts Competitive Loan shall have not been included in the calculation of the LIBOR Rate, upon demand by such Lender (through the Administrative Agent)made.
(b) If any Lender or any Issuing Lender shall have determined in good faith that the adoption after the date of this Agreement of any Regulatory Change law, rule, regulation or guideline regarding capital adequacy or liquidity, or any change in any law, rule, regulation or guideline (including under Regulation D or pursuant to Basel III or Xxxx-Xxxxx) regarding capital adequacy or liquidity requirements or in the interpretation or administration 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 its Parent or any lending office of such Lender) or Issuing Lender or any Lender’s or Issuing Lender’s holding company with any request or directive regarding capital adequacy or liquidity requirements (whether or not having the force of Lawlaw) of any Tribunal, monetary such 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) Issuing Lender’s capital or on the capital of such 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 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 Parent) Issuing Lender or such Lender’s or Issuing Lender’s holding company could have achieved but for such Regulatory Changeapplicability, adoption, change or compliance (taking into consideration such Lender’s or Issuing Lender’s policies and the policies of such Lender’s or Issuing Lender’s holding company with respect to capital and liquidity requirementsadequacy or liquidity) by an amount deemed in good faith by such Lender or Issuing Lender to be material, then from time to time, time the relevant Borrower shall agrees to pay to the Administrative Agent for the account of such Lender or Issuing Lender as provided in paragraph (c) below such additional amount or amounts as will compensate such Lender or Issuing Lender or such Lender’s or Issuing Lender’s holding company for any such reduction upon demand by such Lender (through the Administrative Agent)suffered.
(c) A certificate of a each Lender or Issuing 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 or Issuing Lender as specified in paragraph (a) or (b) above, as the case may be, (iii) and the calculation of such amount or amounts under clause (a) or (b) above, basis therefor in reasonable detail shall be delivered to the relevant 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 and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The relevant Borrower shall pay to the Administrative Agent for the account of such each Lender or Issuing Lender the amount shown as due on any such certificate within 15 30 days after its receipt of the same; provided that . Upon the Borrower shall not be required to pay the Administrative Agent for the account receipt 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 the relevant Borrower shall be entitled, in its sole discretion, if any requested Loan has not been made, to cancel its acceptance of costs and expenses as it shall in good xxxxx xxxx reasonable and may use any reasonable averaging and attribution methodthe relevant Competitive Bids or to cancel the Competitive Bid Request relating thereto, subject to Section 2.16.
(d) Except as provided in this paragraph, failure on the part of any Lender or Issuing 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 period shall not constitute a waiver of such Lender’s or Issuing Lender’s right to demand compensation with respect to any other period. The protection of this Section 2.10 2.15 shall be available to each Lender and Issuing Lender regardless of any possible contention of the invalidity or inapplicability of the law, rule, regulation, guideline or other change or condition which shall have occurred or been imposedimposed so long as it shall be customary for Lenders or Issuing Lenders affected thereby to comply therewith. No Lender or Issuing 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 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. Notwithstanding any other provision of this Section 2.15, no Lender or Issuing Lender 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 or Issuing Lender (as the case may be) to demand such compensation in similar circumstances under comparable provisions of other credit agreements, if any. In the event any Borrower shall reimburse any Lender or Issuing Lender pursuant to this Section 2.15 for any cost and such Lender or Issuing Lender (as the case may be) shall subsequently receive a refund in respect thereof, such Lender or Issuing Lender (as the case may be) shall so notify such Borrower and, upon its request, will pay to such Borrower the portion of such refund which such Lender or Issuing Lender (as the case may be) shall determine in good faith to be allocable to the cost so reimbursed. The covenants contained in this Section 2.15 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(e) Without prejudice Notwithstanding anything herein to the survival contrary, for purposes hereof, each Borrower agrees that (i) Xxxx-Xxxxx and (ii) Basel III and in each case, all requests, rules, guidelines, requirements or directives thereunder or issued in connection therewith, shall in each case be deemed to be changes in law, rule, regulation or guideline referred to in this Section 2.15 after the date of any other obligations this Agreement, regardless of the Borrower hereunderdate enacted, the obligations of the Borrower under this Section 2.10 shall survive for one year after the termination of this Agreement and/or the payment adopted, promulgated or assignment of any of the Loans or Notesissued.
Appears in 2 contracts
Samples: Credit Agreement (CBS Corp), Credit Agreement (CBS Corp)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the Closing Date any Regulatory Change if, by reason of (i) subjects after the Effective Date, the introduction of or any Lender to change (including any Taxes (other than (xchange by way of imposition or increase of reserve requirements) Non-Excluded Taxes in or Taxes described in clause (i) the interpretation of any law or regulation, or (ii) of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply compliance with any certification, information, documentation, guideline or request from any central bank or other reporting Governmental Authority or quasi-Governmental Authority exercising control over banks or financial institutions generally (whether or not having the force of law), any reserve (including any imposed by the Federal Reserve Board), special deposit or similar requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (ii) shall impose, modify, or deem applicable any including a reserve, special deposit, deposit or similar requirement with respect to any LIBOR Loan (or participating interest therein), that takes the form of a tax) against assets of, deposits with or for the account of, or credit extended by, such Lender under this Agreement, any Participant’s office through which it funds its obligations hereunder shall be imposed or (iii) with respect to any LIBOR Loan, shall impose on such Lender deemed applicable or the London interbank market any other condition affecting this Agreement its obligation to make or any LIBOR Loan made by such Lender, and maintain its Funded Participant’s Interest at a rate based upon the result of any of the foregoing Adjusted LIBO Rate shall be to imposed on any Participant or its office through which it funds its obligations hereunder or the interbank Eurodollar market; and as a result thereof there shall be any increase in the cost to such Lender Participant of making agreeing to make or making, funding or maintaining any LIBOR Loan funds its obligations hereunder (except to the extent already included in the determination of the applicable Adjusted LIBO Rate), or to reduce there shall be a reduction in the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest, that Participant or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be materialits office through which it funds its obligations hereunder, then the Borrower Sponsor shall from time to time, upon written notice from and demand by the Participant (with a copy of such notice and demand to the Servicer), pay to the Administrative Agent Servicer for the account of that Participant within five Business Days after the date specified in such Lender notice and demand, additional amounts sufficient to indemnify that Participant against such additional amount or amounts increased cost. A certificate as will compensate such Lender for such increase or reduction to such Lender, to the extent amount of such amounts have not been included in increased cost submitted to the calculation of Sponsor and the LIBOR RateServicer by that Participant, upon demand by such Lender (through the Administrative Agent)shall, except for manifest error, be final, conclusive and binding for all purposes.
(b) If while the Commitment or any Lender shall have determined in good faith Loan Commitments are outstanding, any Participant (including the Servicer) determines that the adoption of any Regulatory Change law, rule or regulation regarding capital adequacy or liquidity requirements capital maintenance, or any change in any of the foregoing or 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 Participant (or its Parent or any lending office of such LenderParticipant) or any Participant’s holding company with any request or directive regarding capital adequacy or liquidity requirements capital maintenance (whether or not having the force of Lawlaw) of any Tribunal, monetary such authority, central bank, bank or comparable agency, has or would have the effect of reducing the rate of return on such LenderParticipant’s (capital or its Parent’s) on the capital of such Participant’s holding company, if any, as a consequence of its obligations hereunder this Agreement, the Loan Documents or the purchases made by such Participant pursuant hereto to a level below that which such Lender (Participant or its Parent) such Participant’s holding company could have achieved but for such Regulatory Changeadoption, change or compliance (taking into consideration such LenderParticipant’s policies and the policies of such Participant’s holding company with respect to capital and liquidity requirementsadequacy) by an amount reasonably deemed in good faith by such Lender Participant to be material, then from time to time, within 15 days after written demand by such Participant, the Borrower shall Sponsor pay to the Administrative Agent for the account of such Lender Participant such additional amount or amounts as will compensate such Lender Participant or such Participant’s holding company for such reduction upon demand reduction. A certificate as to the amount of any such additional amount or amounts, submitted to the Sponsor and the Servicer by such Lender (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 costsParticipant, (ii) such amount or amounts as shall shall, except for manifest error, be necessary to compensate such Lender as specified in paragraph (a) or (b) abovefinal, as the case may be, (iii) the calculation of such amount or amounts under clause (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 error 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 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 methodall purposes.
(d) The protection of this Section 2.10 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) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of 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 or Notes.
Appears in 2 contracts
Samples: Loan Facility Agreement (Ruby Tuesday Inc), Loan Facility Agreement (Ruby Tuesday Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the Closing Date date of this Agreement, but prior to the first date on which the events described in clauses (A), (B), (C) and (D) of paragraph (d) of this Section 2.12 shall have occurred (the “Obligation Termination Date”), any Regulatory Change (i) subjects in Law 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 or shall impose on such Lender or such Issuing Bank or the London interbank market any other condition affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of Credit or participation therein or subject any Recipient to any Taxes (other than (x) Non-Excluded Taxes or Taxes described in clause (i) Taxes imposed on or with respect to any payment made by any Loan Party under any Loan Document, which shall be solely governed by Section 2.18, (ii) of the first sentence in Section 2.19(aOther Taxes, and (iii) Other Connection Taxes on gross or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentationnet income, or other reporting requirement if such Lender could legally comply profits or receipts (including value-added or similar Taxes, franchise Taxes and such compliance would not materially prejudice such Lender’s legal or commercial positionbranch profits Taxes) of a Recipient) 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, or deem applicable any reserve, special deposit, or similar requirement with respect to any LIBOR Loan (or participating interest therein), against assets of, deposits with or for the account of, or credit extended by, such Lender under this Agreement, or (iii) with respect to any LIBOR Loan, shall impose on such Lender or the London interbank market any other condition affecting this Agreement or any LIBOR Loan 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 or maintaining any LIBOR Eurodollar Loan or increase the cost to any Lender, any 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 hereunder Lender, such Issuing Bank or such other Recipient (whether of principal, interest, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender Lender, such Issuing Bank or such other Recipient to be material, then the applicable Borrower shall will pay to such Lender, such Issuing Bank or such other Recipient, as the Administrative Agent for the account of such Lender case may be, upon demand such additional amount or amounts as will compensate such Lender for such increase or reduction to such Lender, to the extent such amounts have not been included in the calculation of the LIBOR Rate, upon demand by Issuing Bank or such Lender (through the Administrative Agent).
(b) If any Lender shall have determined in good faith that any Regulatory Change regarding capital or liquidity requirements or compliance by any Lender (or its Parent or any lending office of such Lender) with any request or directive regarding capital or liquidity requirements (whether or not having the force of Law) of any Tribunal, monetary authority, central 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 as a consequence of its obligations hereunder to a level below that which such Lender (or its Parent) could have achieved but for such Regulatory Change, or compliance (taking into consideration such Lender’s policies with respect to capital and liquidity requirements) by an amount deemed in good faith 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 (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) aboveRecipient, as the case may be, (iii) the calculation of for such amount additional costs incurred or amounts under clause (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 error 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 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 methodreduction suffered.
(d) The protection of this Section 2.10 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) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of 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 or Notes.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding If the adoption of or any change in any Applicable Law or in the interpretation or application thereof or compliance by any Credit Party with any request or directive (whether or not having the force of law) from any central bank or other provision herein, if after Governmental Authority made subsequent to the Closing Date any Regulatory Change date hereof:
(i) subjects any Lender shall subject such Credit Party to any Taxes (other than (xA) Non-Excluded Indemnified Taxes or and (B) Taxes described in clause (i) or clauses (ii) through (iv) of the first sentence in Section 2.19(adefinition of Excluded Taxes and (C) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial positionConnection Income Taxes) on its loans, loan principal 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 hold applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement with respect to any LIBOR Loan (or participating interest therein), against assets ofheld by, deposits with or other liabilities in or for the account of, advances, loans or other extensions of credit extended (or participations therein) by, or any other acquisition of funds by, any office of such Lender under this Agreement, or that is not otherwise included in the determination of the LIBOR Spread; or
(iii) with respect to any LIBOR Loan, shall impose on such Lender or the London interbank market Credit Party any other condition affecting this Agreement or any LIBOR Loan made by such Lender, (other than Taxes); 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 to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principalCredit Party, interest, or otherwise) in respect thereof by an amount deemed in good faith by that such Lender Credit Party deems to be material, then of making, converting into, continuing or maintaining Loans or issuing or participating in Letters of Credit, or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay such Credit Party, upon its demand, any additional amounts necessary to compensate such Credit Party for such increased cost or reduced amount receivable. If any Credit Party becomes entitled to claim any additional amounts pursuant to this paragraph, it shall promptly notify the Borrower (with a copy 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, to the extent such amounts have not been included in the calculation Agent) of the LIBOR Rate, upon demand event by such Lender (through the Administrative Agent)reason of which it has become so entitled.
(b) If If, after the date of this Agreement, any Lender shall have determined in good faith that the adoption after the date hereof of or any Regulatory Change change after the date hereof in any applicable law, rule, regulation or guideline regarding capital adequacy or liquidity requirements 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 its Parent or any lending office Lending Office of such Lender) with any request or directive regarding capital adequacy or liquidity requirements (in each case, whether or not having the force of Lawlaw) of any Tribunal, monetary authoritysuch Governmental Authority, central bank, bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s (capital or its Parent’s) on the capital of such Lender’s holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its Parentholding company) could have achieved but for such Regulatory Changeapplicability, 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 and liquidity requirementsadequacy or liquidity) 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 (or its holding company) such additional amount or amounts as will compensate such Lender or such holding company for such reduction upon demand by such Lender (through the Administrative Agent)Lender.
(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 under referred to in the preceding clause (a) or (b) abovei), 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 and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower shall pay to the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 15 days 20 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; provided that the Borrower shall not be required to pay the Administrative Agent for the account of such compensate a Lender pursuant to this Section 2.10 for any amount specified in clause (a) increased cost or (b) above in respect of a period occurring reduction incurred more than 180 days six months prior to the date on which that such Lender notifies the Borrower of such Regulatory Change change in law and that such Lender’s intention Lender intends to claim demand compensation therefor; provided, exceptfurther, that if such increased cost is retroactive in nature, then the Regulatory Change giving rise six month period referred to any amount specified in clause (a) or (b) above is retroactive, no such time limitation the previous proviso shall apply so long as such Lender requests compensation within 180 days from be extended to include the date on which the applicable Tribunal informed such Lender period of such Regulatory Changeretroactive effect thereof. 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) The protection of this Section 2.10 2.16 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) Without prejudice 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 2.16, Section 2.17, Section 2.22 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.16, Section 2.17, Section 2.22(d) or Section 2.24(g), it will, if requested by the Borrower, use its reasonable efforts (subject to the survival overall policy considerations of such Lender) 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 2.16, Section 2.17, Section 2.22 or Section 2.24(g) would be materially reduced or the Taxes or other obligations amounts otherwise payable under this Section 2.16, Section 2.17 or Section 2.22(d) would be materially reduced, and if, as determined by such Lender, in its sole reasonable discretion, the making, funding or maintaining of the Borrower hereunder, such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit; provided that nothing in Section 2.29 shall affect or postpone any of the obligations of the Borrower under this Section 2.10 shall survive for one year after or the termination of this Agreement and/or the payment or assignment rights of any Lender pursuant to Section 2.16 or 2.22.
(f) Notwithstanding anything herein to the contrary, (i) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or by United States or foreign regulatory authorities, in each case pursuant to Basel III, and (ii) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof, shall in each case be deemed to be a change in law, regardless of the Loans date enacted, adopted, issued or Notesimplemented.
Appears in 1 contract
Samples: Credit Agreement (PHH Corp)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the Closing Date date of this Agreement any Regulatory Change (i) subjects any Lender shall change the basis of taxation of payments to any Taxes Bank of the principal of or interest on any Eurodollar Loan or Fixed Rate Loan made by such Bank or any other fees or amounts payable hereunder (other than (x) Non-Excluded Taxes imposed on or Taxes described measured by the capital, receipts or franchises of such Bank or the overall gross or net income of such Bank by the jurisdiction in clause which such Bank has its principal office or by any political subdivision or taxing authority therein (i) or (ii) of the first sentence in Section 2.19(aany 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 Tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender Bank to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable theretorequirement), (ii) shall impose, modify, or deem applicable any reserve, special deposit, or similar requirement with respect to any LIBOR Eurodollar Loan (or participating interest therein), against assets of, deposits with or for the account of, or credit extended by, such Lender Bank under this AgreementAgreement (without duplication of any amounts paid pursuant to Section 2.9(d)), or (iii) with respect to any LIBOR Eurodollar Loan, shall impose on such Lender Bank or the London interbank market Eurodollar Interbank Market any other condition affecting this Agreement or any LIBOR Eurodollar Loan made by such LenderBank, and the result of any of the foregoing shall be to materially increase the actual cost to such Lender Bank of maintaining its Commitment or of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan or to materially 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 to be materialthereof, then the Borrower Company shall pay to the Administrative Agent for the account of such Lender Bank, within ten days following delivery to the Company of the certificate specified in paragraph (c) below by such Bank, such additional amount or amounts as will compensate reimburse such Lender Bank for such increase or reduction to such Lender, Bank to the extent such amounts have not been included in the calculation of the LIBOR Rate, upon demand by such Lender (through the Administrative Agent)reasonably allocable to this Agreement.
(b) If any Lender Bank shall have determined in good faith that any Regulatory Change regarding capital or liquidity requirements adequacy or compliance by any Lender Bank (or its Parent parent or any lending office of such LenderBank) with any request or directive regarding capital or liquidity requirements adequacy (whether or not having the force of Law) of any Tribunal, monetary authority, central bank, or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s Bank's (or its Parent’sparent's) capital as a consequence of its obligations hereunder to a level below that which such Lender Bank (or its Parentparent) could have achieved but for such Regulatory Change, or compliance (taking into consideration such Lender’s Bank's policies with respect to capital and liquidity requirementsadequacy) by an amount deemed in good faith by such Lender Bank to be material, then from time to time, the Borrower Company shall pay to the Administrative Agent for the account of such Lender Bank, within ten days following delivery to the Company of the certificate specified in paragraph (c) below by such Bank, such additional amount or amounts as will compensate reimburse such Lender Bank (or its parent) for such reduction upon demand by such Lender (through the Administrative Agent)reduction.
(c) Each Bank shall notify the Company of any event occurring after the date hereof entitling such Bank to compensation under paragraph (a) or (b) of this Section 2.13 (together with a good faith estimate of the amounts it would be entitled to claim in respect of such event) as promptly as practicable, but in any event on or before the date which is 60 days after the related Regulatory Change or other event; provided that (i) if such Bank fails to give such notice by such date, such Bank shall, with respect to compensation payable pursuant to paragraph (a) or (b) of this Section 2.13 in respect of any costs resulting from such Regulatory Change or other event, only be entitled to payment under paragraph (a) or (b) of this Section 2.13 for costs incurred from and after the date of such notice and (ii) such Bank will take such reasonable actions, if any (including the designation of a different Applicable Lending Office for the Loans of such Bank affected by such event) to avoid the need for, or reduce the amount of, such compensation so long as such actions will not, in the reasonable opinion of such Bank, be materially disadvantageous to such Bank. A certificate of a Lender Bank setting forth in reasonable detail (i) the Regulatory Change or other event giving rise to such any costs, (ii) such amount or amounts as shall be necessary to compensate reimburse such Lender Bank (or participating banks or other entities pursuant to Section 9.11) as specified in paragraph (a) or (b) aboveof this Section 2.13, as the case may be, and (iii) the calculation of such amount or amounts under clause (a) or (b) aboveamounts, shall be delivered to the Borrower Company (with a copy to the Administrative Agent) promptly after such Lender Bank determines it is entitled to compensation payment under this Section 2.102.13, and shall be conclusive and binding absent manifest error 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 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 Changeerror. In preparing such certificate, such Lender Bank may employ such assumptions and allocations of costs and expenses as it shall in good xxxxx xxxx faith deem reasonable and may use any reasonable averaging and attribution anx xxtribution method.
(d) The protection of In the event any Bank shall seek payment pursuant to this Section 2.10 2.13 or the events contemplated under Section 2.11 or Section 2.14 shall have occurred with respect to any Bank, the Company may, provided no Event of Default has occurred and is continuing, give notice to such Bank (with copies to the Agents) that it wishes to seek one or more assignees (which may be available to each Lender regardless of any possible contention of invalidity one or inapplicability more of the lawBanks, regulationbut which may not be a Person who would be entitled at such time to claim payment pursuant to this Section 2.13 or with respect to which any of the events contemplated under Section 2.11 or Section 2.14 would exist at such time if such Person were a Bank under this Agreement) to assume the Commitment of such Bank and to purchase its outstanding Loans and Notes (if any). Each Bank requesting payment pursuant to this Section 2.13, or condition with respect to which any of the events contemplated under Section 2.11 or Section 2.14 have occurred, agrees to sell its Commitment, Loans, Notes (if any), and interest in this Agreement and the other Loan Papers pursuant to Section 9.11(c) to any such assignee approved by the Company and the Administrative Agent for an amount equal to the sum of the outstanding unpaid principal of and accrued interest on such Loans and Notes (if any) plus all other fees and amounts (including, without limitation, any payment claimed by such Bank under this Section, 2.13 and as to which such Bank has delivered the certificate required by Section 2.13(c) on or before the date such Commitment, Loans, and Notes (if any) are purchased) due such Bank hereunder calculated, in each case, to the date such Commitment, Loans, Notes (if any) and interest are purchased, whereupon such Bank shall have been imposedno further Commitment or other obligation to the Company hereunder or under any other Loan Paper.
(e) Notwithstanding anything herein to the contrary, no Bank or participant shall be entitled to any payment under this Section 2.13 with respect to any Competitive Loan.
(f) Without prejudice to the survival of any other obligations of the Borrower Company hereunder, the obligations of the Borrower Company under this Section 2.10 2.13 shall survive for one year after the termination of this Agreement and/or the payment or assignment of any of the Loans or Notes.
Appears in 1 contract
Samples: Competitive Advance and Revolving Credit Facility Agreement (Southwest Airlines Co)
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, or Excluded Taxes if (i) after the Closing Date any Regulatory 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 (i) subjects any Lender to any Taxes (other than (x) Non-Excluded Taxes whether or Taxes described in clause (i) or (ii) not having the force of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable theretolaw), (ii) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or the compliance with any requests, rules, guidelines or directives thereunder or issued in connection therewith, regardless of the date enacted, adopted or issued or (iii) the compliance with any requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued (x) shall impose, modify, modify or deem applicable any reserve, special deposit, deposit or similar requirement with respect to any LIBOR Loan (or participating interest therein), against assets of, deposits with or for the account of, or credit extended or participated in by, such any Lender under this Agreementor Issuing Lender, or (iiiy) with respect to any LIBOR Loan, shall impose on such any Lender or Issuing Lender or the London or other offshore interbank market for any Currency any other condition condition, cost or expense affecting this Agreement or any LIBOR Loan or Fixed Rate Competitive Loan made by such LenderLender or any Letter of Credit or participation therein or (z) shall subject any Lender or Issuing Lender to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any LIBOR Loan made by it, or change the basis of taxation of payments to such Lender in respect thereof, and the result of any of the foregoing shall be to increase the cost (other than, except as provided in clause (z), the amount of Taxes, if any) to such Lender of making making, converting to, continuing or maintaining any LIBOR Loan or Fixed Rate Competitive Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or Issuing Lender 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 (other than a reduction resulting from an increase in Taxes, if any) of any sum received or receivable by such Lender or Issuing Lender hereunder (whether of principal, interest, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or Issuing Lender to be material, then the Borrower or the relevant Subsidiary Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender or Issuing Lender, as the case may be, for such increase or reduction to such Lender or Issuing Lender, to the extent such amounts have not been included in the calculation of the LIBOR Rate, upon demand by such Lender (through the Administrative Agent).
(b) If Except with respect to Indemnified Taxes and Other Taxes, which shall be governed solely and exclusively by Section 2.23, or Excluded Taxes if (i) after the Closing Date, any Lender or Issuing Lender shall have determined in good faith that the adoption after the Closing Date of any Regulatory Change applicable law, rule, regulation or guideline regarding capital adequacy or liquidity requirements requirements, 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 Issuing Lender (or its Parent or any lending office Lending Office of such Lender or such Lender’s or Issuing Lender’s holding company, if any) with any request or directive regarding capital adequacy or liquidity requirements (whether or not having the force of Lawlaw) of any Tribunal, monetary authoritysuch Governmental Authority, central bank, bank or comparable agency, (ii) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or the compliance with any requests, rules, guidelines or directives thereunder or issued in connection therewith, regardless of the date enacted, adopted or issued or (iii) the compliance with any requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, has or would have the effect of reducing the rate of return on such Lender’s (or its Parent’s) Issuing Lender capital or on the capital of such Lender’s or Issuing Lender’s holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender or Issuing Lender (or its Parentsuch Lender’s or Issuing Lender’s holding company) could have achieved but for such Regulatory Change, or compliance the items referenced in clauses (i)-(iii) of this sentence (taking into consideration such Lender’s or Issuing Lender’s policies or the policies of such Lender’s or Issuing Lender’s holding company, as the case may be, with respect to capital adequacy and liquidity requirementsliquidity) by an amount deemed in good faith by such Lender or Issuing Lender to be material, then then, from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender or Issuing Lender, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Lender, as the case may be, for such reduction upon demand by such Lender (through the Administrative Agent)or Issuing Lender.
(c) A certificate of a Lender or Issuing 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 or Issuing Lender as specified in paragraph (a) or (b) above, as the case may be, and (iiiii) the calculation of such amount or amounts under referred to in the preceding clause (a) or (b) abovei), shall be delivered to the Borrower (with a copy to or the Administrative Agent) promptly after such Lender determines it is entitled to compensation under this Section 2.10, relevant Subsidiary Borrower and shall be conclusive and binding absent manifest error and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower or the relevant Subsidiary Borrower shall pay to the Administrative Agent for the account of such Lender or Issuing Lender, as the case may be, the amount shown as due on any such certificate within 15 days 10 Business 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 or Issuing 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 or Issuing 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 2.10 2.17 shall be available to each Lender and Issuing Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation, regulation or condition which shall have been imposed.
(e) Without prejudice Each Lender and Issuing 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 2.17, Section 2.18, Section 2.23 or Section 2.26 or (ii) would require the Borrower or any Subsidiary Borrower to pay an increased amount under this Section 2.17, Section 2.18, Section 2.23 or Section 2.26, it will notify the Borrower and such Subsidiary Borrower of such event or condition and, to the survival extent not inconsistent with such Lender’s or Issuing Lender’s internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans or Letters of Credit of such Lender or Issuing Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender or Issuing 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 or Issuing 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 2.17, Section 2.18, Section 2.23 or Section 2.26 would be materially reduced or the Taxes payable under Section 2.23, or other obligations amounts otherwise payable under this Section 2.17, Section 2.18 or Section 2.26 would be materially reduced, and if, as determined by such Lender or Issuing Lender, as the case may be, 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 or Issuing Lender. For the Borrower hereunderavoidance 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. The Borrower hereby agrees to pay (or cause the applicable Subsidiary Borrower to pay) all reasonable costs and expenses incurred by any Lender or Issuing Lender in connection with any such designation or assignment.
(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 2.18, or if the Borrower or such Subsidiary Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16 or Section 2.23, the Borrower may (but subject in any such case to the payments required by Section 2.18), upon at least five Business Days’ prior written or telecopier notice to such Lender and the Administrative Agent, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Revolving 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 Revolving Commitment, any Loans owing to such Lender and any participations in Letters of Credit to such replacement lending institution pursuant to Section 10.3. 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 2.10 shall survive Section) owing hereunder to such Lender as at such effective date for one year after the termination of this Agreement and/or the payment or assignment of any of the Loans or Notessuch assignment.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the Closing Date any Regulatory Change (i) subjects any Lender to any Taxes (other than (x) Non-Excluded Taxes or Taxes described in clause (i) or (ii) of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (ii) shall impose, modify, or deem applicable any reserve, special deposit, or similar requirement with respect to any LIBOR Loan (or participating interest therein), against assets of, deposits with or for the account of, or credit extended by, such Lender under this Agreement, or (iii) with respect to any LIBOR Loan, shall impose on such Lender or the London interbank market any other condition affecting this Agreement or any LIBOR 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 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 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, to the extent such amounts have not been included in the calculation of the LIBOR Rate, upon demand by such Lender (through the Administrative Agent).
(b) If any Lender shall have determined in good faith that any Regulatory Change regarding capital or liquidity requirements or compliance by any Lender (or its Parent or any lending office of such Lender) with any request or directive regarding capital or liquidity requirements (whether or not having the force of Law) of any Tribunal, monetary authority, central 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 as a consequence of its obligations hereunder to a level below that which such Lender (or its Parent) could have achieved but for such Regulatory Change, or compliance (taking into consideration such Lender’s policies with respect to capital and liquidity requirements) by an amount deemed in good faith 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 (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, (iii) the calculation of such amount or amounts under clause (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 error 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 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) The protection of this Section 2.10 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) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of 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 or Notes.
Appears in 1 contract
Samples: Credit Agreement (Centurylink, Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if If after the Closing Date date of this Agreement (or as provided in the last sentence of this Section 2.08(a)) any Regulatory Change adoption, issuance or change in applicable law, rule or regulation, guideline, request or directive 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 but with respect to which similarly situated banks generally comply) (i) subjects shall impose on any Lender to Bank any Taxes (other than (x) Non-Indemnified Taxes and Excluded Taxes or Taxes described in clause (i) or (ii) of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial positionTaxes) on its loans, loan principal 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, compulsory loan, insurance charge or similar requirement with respect to any LIBOR Loan (or participating interest therein), against assets of, deposits with or for the account of, or credit extended by, such Lender under this Agreement, any Bank or (iii) with respect to any LIBOR Loan, shall impose on such Lender any Bank or on the London interbank market any other cost or condition (other than Taxes), however denominated, affecting this Agreement or any LIBOR 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 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, 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 the Administrative Agent for the account of such Lender Section 2.08(d) hereof, 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, 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 extent such amounts have not been included in the calculation basis of the LIBOR Rate, upon demand net effect of any Increased Cost Changes incurred by such Lender (through the Administrative Agent).
(b) If any Lender shall have determined in good faith that any Regulatory Change regarding capital or liquidity requirements or compliance by any Lender (or its Parent or any lending office of such Lender) with any request or directive regarding capital or liquidity requirements (whether or not having the force of Law) of any Tribunal, monetary authority, central 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 as a consequence of its obligations hereunder to a level below that which such Lender (or its Parent) could have achieved but for such Regulatory Change, or compliance (taking into consideration such Lender’s policies with respect to capital and liquidity requirements) by an amount deemed in good faith by such Lender to be material, then Bank from time to timetime after the Effective Date of this Agreement. For all purposes of this Section 2.08, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Borrower 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 pay in each case, if they shall have any of the effects referred 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 (through the Administrative Agent).
(c) A certificate of a Lender setting forth in reasonable detail clauses (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, (iii) the calculation of such amount or amounts under clause (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 error 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 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) The protection of this Section 2.10 shall 2.08(a), be available deemed to each Lender regardless of any possible contention of invalidity be an “Increased Cost Change”, whether enacted, adopted, promulgated or inapplicability of the law, regulation, issued before or condition which shall have been imposed.
(e) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of the Borrower under this Section 2.10 shall survive for one year after the termination date of this Agreement and/or the payment or assignment of any of the Loans or NotesAgreement.
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 Closing Date any Regulatory Change (i) subjects any Lender to any Taxes (other than (x) Non-Excluded Taxes or Taxes described in clause (i) or (ii) of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (ii) shall impose, modify, or deem applicable any reserve, special deposit, or similar requirement with respect to any LIBOR Loan (or participating interest therein), against assets of, deposits with or for the account of, or credit extended by, such Lender under this Agreement, or (iii) with respect to any LIBOR Loan, shall impose on such Lender or the London interbank market any other condition affecting this Agreement or any LIBOR 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 to reduce the amount of any sum received or receivable by such Lender Fixed Rate Loan 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 additional costs or reduction will be paid by the Borrowers to such LenderLender upon demand. Notwithstanding the foregoing, no Lender shall be entitled to request compensation under this paragraph with respect to any Competitive Loan if the extent change giving rise to such amounts have not been included in request was applicable to such Lender at the calculation time of submission of the LIBOR Rate, upon demand by Competitive Bid pursuant to which such Lender (through the Administrative Agent)Competitive Loan was made.
(b) If any Lender shall have determined in good faith that the adoption after the date hereof of any Regulatory Change 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 other law, rule, regulation or guideline regarding capital adequacy, or liquidity requirements any change in any of the foregoing or in the interpretation or administration 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 entity controlling a Lender (or its Parent or any lending office of such Lender or entity controlling such Lender) with any request or directive regarding capital or liquidity requirements adequacy (whether or not having the force of Lawlaw) of any Tribunal, monetary such authority, 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 its Parent’sthe capital of an entity controlling such Lender) capital 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 Parent) could have achieved but for such Regulatory Changeadoption, change or compliance (taking into consideration such Lender’s 's policies with respect to capital and liquidity requirementsadequacy) by an amount deemed in good faith 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 time such additional amount or amounts as will compensate such Lender for such reduction upon demand will be paid by the Borrowers to such Lender (through the Administrative Agent)Lender.
(c) A certificate of a each 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, (iii) shall be delivered to the calculation Company promptly by such Lender upon becoming aware of such amount or amounts under clause any costs pursuant to paragraphs (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, above and shall be conclusive and binding absent manifest error and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower Company shall pay to the Administrative Agent for the account of such each Lender the amount shown as due on any such certificate delivered by it within 15 10 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 period shall not constitute a waiver of such Lender's right to demand compensation with respect to such period or any other period. The protection of this Section 2.10 shall be available to each Lender regardless of any possible contention of the invalidity or inapplicability of the law, rule, regulation, guideline or other change or condition which shall have occurred or been imposed.
(e) Without prejudice . No Lender shall be entitled to the survival of any other obligations of the Borrower hereunder, the obligations of the Borrower compensation under this Section 2.10 2.13 for any costs incurred or reduction suffered with respect to any date unless such Lender shall survive have notified the Company that it will demand compensation for one year such costs or reductions not more than 90 days after the termination later of (i) such date and (ii) the date on which such Lender shall have become aware of such costs or reductions. Notwithstanding any other provision of this Agreement and/or Section 2.13, no Lender shall demand compensation for any increased cost or reduction referred to above if it shall not at the payment time be the 27 22 general policy or assignment practice of any such Lender to demand such compensation in similar circumstances under comparable provisions of the Loans or Notesother credit agreements, if any.
Appears in 1 contract
Samples: 364 Day Competitive Advance and Revolving Credit Facility Agreement (Perkinelmer Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the Closing Date date of this Agreement any Regulatory Change (i) subjects shall change the basis of taxation of payments to any Lender to of the principal of or interest on any Taxes Eurodollar Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) Non-Excluded Taxes imposed on or Taxes described measured by the capital, receipts or franchises of such Lender or the overall gross or net income of such Lender by the jurisdiction in clause which such Lender has its principal office or by any political subdivision or taxing authority therein (i) or (ii) of the first sentence in Section 2.19(aany 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 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 if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable theretorequirement), (ii) shall impose, modify, or deem applicable any reserve, special deposit, or similar requirement with respect to any LIBOR Loan (or participating interest therein)Eurodollar Loan, against assets of, deposits with or for the account of, or credit extended by, such Lender under this Agreement, or (iii) with respect to any LIBOR Eurodollar Loan, shall impose on such Lender or the London interbank market any other condition affecting this Agreement or any LIBOR 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 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 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, to the extent such amounts have not been included in the calculation of the LIBOR Eurodollar Rate, upon demand by such Lender (through the Administrative Agent).
(b) If any Lender shall have determined in good faith that any Regulatory Change regarding capital or liquidity requirements adequacy or compliance by any Lender (or its Parent parent or any lending office of such Lender) with any request or directive regarding capital or liquidity requirements adequacy (whether or not having the force of Law) of any Tribunal, monetary authority, central bank, or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s 's (or its Parent’sparent's) capital as a consequence of its obligations hereunder to a level below that which such Lender (or its Parentparent) could have achieved but for such Regulatory Change, or compliance (taking into consideration such Lender’s 's policies with respect to capital and liquidity requirementsadequacy) by an amount deemed in good faith 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 (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 under clause (a) or (b) abovea)(i), 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 and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower shall pay to the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 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 faith deem reasonable and may use any reasonable averaging and attribution xxxxxxxxxxn 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 2.10 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) In the event any Lender shall seek compensation pursuant to this Section 2.10, the Borrower may, provided no Event of Default has occurred and is continuing, 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 other 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, 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 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 judgment of such Lender, is not otherwise disadvantageous to such Lender.
(g) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of 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 or Notes.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Centurytel Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the Closing Date date of this Agreement the enactment of any Regulatory Change new law or regulation, or any change in applicable existing law or regulation, or in the interpretation or administration of the foregoing by any Governmental Authority charged with the interpretation or administration thereof (i) subjects whether or not having the force of law), including, without limitation, all requests, rules, guidelines or directives in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act regardless of the date enacted, adopted or issued, shall change the basis of taxation of payments to any Lender to any Taxes hereunder (other than (x) Non-Excluded Taxes or Taxes described except for changes in clause (i) or (ii) respect of taxes on the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure overall net income of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice or its lending office imposed by the jurisdiction in which such Lender’s legal principal executive office or commercial position) on its loans, loan principal or other obligationslending office is located), or its depositsshall result in the imposition, reserves, other liabilities modification or capital attributable thereto, (ii) shall impose, modify, or deem applicable applicability of any reserve, special deposit, deposit or similar requirement with respect to any LIBOR Loan (or participating interest therein), against assets of, deposits with or for the account of, of or credit extended by, such Lender under this Agreementby any Lender, or (iii) with respect to shall result in the imposition on any LIBOR Loan, shall impose on such Lender or the London interbank market of any other condition affecting this Agreement Agreement, such Lender’s Commitment or any LIBOR Loan Extension of Credit 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 Extension of Credit 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 shall, upon receipt of the notice and certificate provided for in Section 2.13(c), promptly pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such increase additional costs incurred or reduction to such Lender, to the extent such amounts have not been included in the calculation of the LIBOR Rate, upon demand by such Lender (through the Administrative Agent)suffered.
(b) If any Lender shall have determined in good faith that the adoption after the date hereof of any Regulatory Change law, rule, regulation or guideline promulgated by the Bank for International Settlements, the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority) or the United States financial regulatory authorities or the adoption after the date hereof of any other law, rule, regulation or guideline regarding capital adequacy, or liquidity requirements any change in any of the foregoing or in the interpretation or administration 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 its Parent or any lending office of such Lender) or any Lender’s holding company with any request or directive regarding capital or liquidity requirements adequacy (whether or not having the force of Lawlaw) of any Tribunal, monetary such authority, central bank, bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s (capital or its Parent’s) on the capital of such Lender’s holding company, if any, as a consequence of its obligations hereunder this Agreement, such Lender’s Commitment or the Extensions of Credit made by such Lender pursuant hereto to a level below that which such Lender (or its Parent) such Lender’s holding company could have achieved but for such Regulatory Changeadoption, change or compliance (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital and liquidity requirementsadequacy) by an amount deemed in good faith 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 time such additional amount or amounts as will compensate such Lender for any such reduction upon demand suffered will be paid by the Borrower to such Lender (through Lender. For the Administrative Agent)avoidance of doubt, this Section 2.13(b) shall apply to all requests, rules, guidelines or directives concerning capital adequacy issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives concerning capital adequacy.
(c) A certificate of a each 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 or its holding company as specified in paragraph subsection (a) or (b) above, as the case may be, (iii) and containing an explanation in reasonable detail of the calculation of manner in which such amount or amounts under clause (a) or (b) aboveshall have been determined, 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 and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower shall pay to the Administrative Agent for the account of such each Lender the amount shown as due on any such certificate delivered by it within 15 10 days after its receipt of the same; provided that . Each 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 2.13. If any such law, rule, regulation, guideline or other change or condition described in this Section 2.13 shall not later be required held by a court of competent jurisdiction to pay be invalid or inapplicable to the Administrative Agent for Borrower or such Lender, such Lender shall promptly refund to the account of Borrower any amounts previously paid by the Borrower to 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 method2.13.
(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 period shall not constitute a waiver of such Lender’s right to demand compensation with respect to such period or any other period; provided that such Lender shall not be entitled to demand compensation hereunder if such demand is made more than 90 days following the later of such Lender’s incurrence or sufferance thereof and such Lender’s actual knowledge of the event giving rise to such Lender’s rights under this Section. The protection of this Section 2.10 shall be available to each Lender regardless of any possible contention of the invalidity or inapplicability of the law, rule, regulation, guideline or other change or condition which that shall have occurred or been imposed.
(e) Without prejudice Each Lender agrees that it will 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 judgment of such Lender, be disadvantageous to the survival of any other obligations of the Borrower hereunder, the obligations of 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 or Notessuch Lender.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the Closing Date date of this Agreement any Regulatory Change change in applicable Law or regulation or in the interpretation or administration thereof by any Tribunal charged with the interpretation or administration thereof (whether or not having the force of Law) (i) subjects any Lender shall change the basis of taxation of payments to any Taxes Bank of the principal of or interest on any Eurodollar Loan or Fixed Rate Loan made by such Bank or any other fees or amounts payable hereunder (other than (x) Non-Excluded Taxes imposed on the overall net income of such Bank by the jurisdiction in which such Bank has its principal office or Taxes described in clause by any political subdivision or taxing authority therein (i) or (ii) of the first sentence in Section 2.19(aany 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 Tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender Bank to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable theretorequirement), (ii) shall impose, modify, or deem applicable any reserve, special deposit, or similar requirement with respect to any LIBOR Loan (or participating interest therein), against assets of, deposits with or for the account of, or credit extended by, such Lender under this AgreementBank, or (iii) with respect to any LIBOR Loan, shall impose on such Lender Bank or the London interbank market Eurodollar Interbank Market any other condition affecting this Agreement or any LIBOR Eurodollar 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 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 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 to the Administrative Agent for the account of such Lender Bank such additional amount or amounts as will compensate such Lender Bank for such increase or reduction to such Lender, to the extent such amounts have not been included in the calculation of the LIBOR Rate, Bank upon demand by such Lender Bank (through the Administrative Agent). Notwithstanding the foregoing, in no event shall any Bank be permitted to receive any compensation hereunder constituting interest in excess of the Highest Lawful Rate.
(b) If any Lender Bank shall have determined in good faith that the adoption of any Regulatory Change applicable law, rule, regulation, or guideline regarding capital adequacy, or liquidity requirements any change therein, or any change in the interpretation or administration thereof by any Tribunal, central bank, or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender Bank (or its Parent or any lending office of such LenderBank) with any request or directive regarding capital or liquidity requirements adequacy (whether or not having the force of Law) of any Tribunal, monetary such authority, central bank, or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s (or its Parent’s) Bank's capital as a consequence of its obligations hereunder to a level below that which such Lender (or its Parent) Bank could have achieved but for such Regulatory Changeadoption, change, or compliance (taking into consideration such Lender’s Bank's policies with respect to capital and liquidity requirementsadequacy) by an amount deemed in good faith by such Lender Bank to be material, then from time to time, the Borrower 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 Lender Bank (through the Administrative Agent). Notwithstanding the foregoing, in no event shall any Bank be permitted to receive any compensation hereunder constituting interest in excess of the Highest Lawful Rate.
(c) A certificate of a Lender Bank 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 Bank as specified in paragraph (a) or (b) above, as the case may be, and (iiiii) the calculation of such amount or amounts under clause (a) or (b) abovea)(i), shall be delivered to the Borrower (with a copy to the Administrative Agent) promptly after such Lender Bank determines it is entitled to compensation under this Section 2.102.13, and shall be conclusive and binding absent manifest error and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower shall pay to the Administrative Agent for the account of such Lender Bank the amount shown as due on any such certificate within 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 Bank may employ such assumptions and allocations of costs and expenses as it shall in good xxxxx xxxx faith deem reasonable and may use any reasonable averaging and attribution xxxxxxxxxon method.
(d) Failure on the part of any 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 Bank'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 2.10 2.13 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.
(e) In the event any Bank shall seek compensation pursuant to this Section 2.13, the Borrower may give notice to such Bank (with copies to the Agents) that it wishes to seek one or more Eligible Assignees (which may be one or more of the Banks) to assume the Commitment of such Bank and to purchase its outstanding Loans and Notes. Each Bank requesting compensation pursuant to this Section 2.13 agrees to sell its Commitment, Loans, Notes, and interest in this Agreement and the other 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, without limitation, any compensation claimed by such Bank under this Section 2.13 and as to which such Bank has delivered the certificate required by Section 2.13(c) on or before the date such Commitment, Loans, and Notes are purchased) due such Bank hereunder calculated, in each case, to the date such Commitment, Loans, Notes, and interest are purchased. Following any such sale, such Bank 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 Bank shall be entitled to any compensation under this Section 2.13 with respect to any Competitive Loan.
(g) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of the Borrower under this Section 2.10 2.13 shall survive for one year after the termination of this Agreement and/or the payment or assignment of any of the Loans or Notes.
Appears in 1 contract
Samples: Competitive Advance and Revolving Credit Facility Agreement (Century Telephone Enterprises Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof applicable to any Lender, or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other provision hereinGovernmental Authority, in each case made subsequent to the Second Amendment Closing Date (or, if after later, the Closing Date any Regulatory Change date on which such Lender becomes a Lender):
(i) subjects any Lender to any Taxes (other than (x) Non-Excluded Taxes or Taxes described in clause (i) or (ii) of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (ii) shall impose, modify, modify or deem hold applicable any reserve, special deposit, compulsory loan or similar requirement with respect to any LIBOR Loan (or participating interest therein), 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 office of such Lender under this Agreementwhich is not otherwise included in the determination of Term SOFR, the LIBOEURIBO Rate or XXXXX Xxxx hereunder (iiiexcluding any Tax of any kind whatsoever); or
(ii) with respect to any LIBOR Loan, shall impose on such Lender or the London interbank market any other condition affecting this Agreement or (excluding any LIBOR 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 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 EurodollarSOFR Loans or RFR 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 amounts necessary to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such increase increased cost or reduction reduced amount receivable with respect to such EurodollarSOFR Loans or RFR Loans; provided that, in any such case, the Borrower may elect to convert the EurodollarSOFR Loans or RFR Loans made by such Lender hereunder to ABR Loans in Dollars (in the case of a EURIBO Rate Loan or XXXXX Rate Loan, in the amount of the Dollar Equivalent thereof) 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 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 extent such amounts have not been included in the calculation of the LIBOR RateBorrower, upon demand by such Lender (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 Xxxxxx 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) (i) for any amounts incurred more than six months prior to the date that such Lender notifies the Borrower of such Xxxxxx’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 Xxxxxx’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 or (ii) for any amounts, if such Lender is applying this provision to the Borrower in a manner that is inconsistent with its application of “increased cost” or other similar provisions under other credit agreements to similarly situated borrowers). This covenant shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) If any Lender shall have determined that the adoption of or any change in good faith that any Regulatory Change Requirement of Law regarding capital adequacy or liquidity requirements or in the interpretation or application thereof or compliance by any such Lender (or its Parent or any lending office of corporation controlling such Lender) Lender with any request or directive regarding capital adequacy or liquidity requirements (whether or not having the force of Lawlaw) of from any TribunalGovernmental Authority, monetary authorityin each case, central bankmade subsequent to the Second Amendment Closing Date, does or comparable agency, has or would shall have the effect of reducing the rate of return on such Lender’s (or its Parent’s) such corporation’s capital as a consequence of its such Xxxxxx’s obligations hereunder to a level below that which such Lender (or its Parent) such corporation could have achieved but for such Regulatory Change, change or compliance (taking into consideration such Lender’s or such corporation’s policies with respect to capital and liquidity requirementsadequacy or liquidity) by an amount deemed in good faith by such Lender or Issuing Bank to be material, 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 (Lender, 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, (iii) the calculation of such amount or amounts under clause (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 in the absence of manifest error and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower shall pay Notwithstanding anything to the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 15 days after its receipt of the same; provided that contrary in this Section 2.14(b), the Borrower shall not be required to pay the Administrative Agent for the account of such compensate a Lender pursuant to this Section 2.10 2.14(b) for any amount specified in clause (a) or (b) above in respect of a period occurring amounts incurred more than 180 days six months prior to the date on which that such Lender notifies the Borrower of such Regulatory Change and Xxxxxx’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 Lenderincreased 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 Xxxxxx’s intention to claim compensation therefor, except, if the Regulatory Change giving rise six-month period first referred 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) The protection of this Section 2.10 sentence shall be available extended to each Lender regardless include the period of any possible contention of invalidity or inapplicability of the law, regulation, or condition which shall have been imposed.
(e) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of the Borrower under this Section 2.10 retroactive effect thereof). This covenant shall survive for one year after the termination of this Agreement and/or and the payment or assignment of any of the Loans and all other amounts payable hereunder.
(c) Notwithstanding anything herein to the contrary, (i) the Xxxx Xxxxx Wall Street Reform and Consumer Protection Act, and all requests, rules, regulations, guidelines and directives promulgated thereunder or Notesissued in connection therewith, and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, in each case, shall be deemed to have been enacted, adopted, promulgated or issued, as applicable, subsequent to the Second Amendment Closing Date for all purposes herein.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the Closing Date date of this Agreement any Regulatory Change (i) subjects shall change the basis of taxation of payments to any Lender to of the principal of or interest on any Taxes Eurodollar Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) Non-Excluded Taxes imposed on or Taxes described measured by the capital, receipts or franchises of such Lender or the overall gross or net income of such Lender by the jurisdiction in clause which such Lender has its principal office or by any political subdivision or taxing authority therein (i) or (ii) of the first sentence in Section 2.19(aany 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 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 if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable theretorequirement), (ii) shall impose, modify, or deem applicable any reserve, special deposit, or similar requirement with respect to any LIBOR Loan (or participating interest therein)Eurodollar Loan, against assets of, deposits with or for the account of, or credit extended by, such Lender under this Agreement, or (iii) with respect to any LIBOR Eurodollar Loan, shall impose on such Lender or the London interbank market any other condition affecting this Agreement or any LIBOR 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 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 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, to the extent such amounts have not been included in the calculation of the LIBOR Eurodollar Rate, upon demand by such Lender (through the Administrative 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 any Lender shall have determined in good faith that any Regulatory Change regarding capital or liquidity requirements adequacy or compliance by any Lender (or its Parent parent or any lending office of such Lender) with any request or directive regarding capital or liquidity requirements adequacy (whether or not having the force of Law) of any Tribunal, monetary authority, central bank, or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s 's (or its Parent’sparent's) capital as a consequence of its obligations hereunder to a level below that which such Lender (or its Parentparent) could have achieved but for such Regulatory Change, or compliance (taking into consideration such Lender’s 's policies with respect to capital and liquidity requirementsadequacy) by an amount deemed in good faith 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 (through the Administrative 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 (iiiii) the calculation of such amount or amounts under clause (a) or (b) abovea)(i), 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 2.102.12, and shall be conclusive and binding absent manifest error and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower shall pay to the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 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 faith deem reasonable and may use any reasonable averaging and axx 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 2.10 2.12 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) In the event any Lender shall seek compensation pursuant to this Section 2.12, the Borrower may, provided no Event of Default has occurred and is continuing, 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 2.12 agrees to sell its Commitment, Loans, Notes, and interest in this Agreement and the other 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, without limitation, any compensation claimed by such Lender under this Section 2.12 and as to which such Lender has delivered the certificate required by Section 2.12(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 any Lender pursuant to this Section 2.12, 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, is not otherwise disadvantageous to such Lender.
(g) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of the Borrower under this Section 2.10 2.12 shall survive for one year after the termination of this Agreement and/or the payment or assignment of any of the Loans or Notes.
Appears in 1 contract
Samples: Credit Agreement (Centurytel 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, or Excluded Taxes if (i) after the Closing Date any Regulatory 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 (i) subjects any Lender to any Taxes (other than (x) Non-Excluded Taxes whether or Taxes described in clause (i) or (ii) not having the force of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable theretolaw), (ii) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or the compliance with any requests, rules, guidelines or directives thereunder or issued in connection therewith, regardless of the date enacted, adopted or issued or (iii) the compliance with any requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued (x) shall impose, modify, modify or deem applicable any reserve, special deposit, deposit or similar requirement with respect to any LIBOR Loan (or participating interest therein), against assets of, deposits with or for the account of, or credit extended or participated in by, such any Lender under this Agreementor Issuing Lender, or (iiiy) with respect to any LIBOR Loan, shall impose on such any Lender or Issuing Lender or the London or other offshore interbank market for any Currency any other condition condition, cost or expense affecting this Agreement or any LIBOR Loan or Fixed Rate Competitive Loan made by such LenderLender or any Letter of Credit or participation therein or (z) shall subject any Lender or Issuing Lender to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any LIBOR Loan made by it, or change the basis of taxation of payments to such Lender in respect thereof, and the result of any of the foregoing shall be to increase the cost (other than, except as provided in clause (z), the amount of Taxes, if any) to such Lender of making making, converting to, continuing or maintaining any LIBOR Loan or Fixed Rate Competitive Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or Issuing Lender 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 (other than a reduction resulting from an increase in Taxes, if any) of any sum received or receivable by such Lender or Issuing Lender hereunder (whether of principal, interest, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender or Issuing Lender to be material, then the Borrower or the relevant Subsidiary Borrower shall pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender or Issuing Lender, as the case may be, for such increase or reduction to such Lender or Issuing Lender, to the extent such amounts have not been included in the calculation of the LIBOR Rate, upon demand by such Lender (through the Administrative Agent).
(b) If Except with respect to Indemnified Taxes and Other Taxes, which shall be governed solely and exclusively by Section 2.23, or Excluded Taxes if (i) after the Closing Date, any Lender or Issuing Lender shall have determined in good faith that the adoption after the Closing Date of any Regulatory Change applicable law, rule, regulation or guideline regarding capital adequacy or liquidity requirements requirements, 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 Issuing Lender (or its Parent or any lending office Lending Office of such Lender or such Lender’s or Issuing Lender’s holding company, if any) with any request or directive regarding capital adequacy or liquidity requirements (whether or not having the force of Lawlaw) of any Tribunal, monetary authoritysuch Governmental Authority, central bank, bank or comparable agency, (ii) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or the compliance with any requests, rules, guidelines or directives thereunder or issued in connection therewith, regardless of the date enacted, adopted or issued or (iii) the compliance with any requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, has or would have the effect of reducing the rate of return on such Lender’s (or its Parent’s) Issuing Lender capital or on the capital of such Lender’s or Issuing Lender’s holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender or Issuing Lender (or its Parentsuch Lender’s or Issuing Lender’s holding company) could have achieved but for such Regulatory Change, or compliance the items referenced in clauses (i)-(iii) of this sentence (taking into consideration such Lender’s or Issuing Lender’s policies or the policies of such Lender’s or Issuing Lender’s holding company, as the case may be, with respect to capital adequacy and liquidity requirementsliquidity) by an amount deemed in good faith by such Lender or Issuing Lender to be material, then then, from time to time, the Borrower shall pay to the Administrative Agent for the account of such Lender or Issuing Lender, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Lender, as the case may be, for such reduction upon demand by such Lender (through the Administrative Agent)or Issuing Lender.
(c) A certificate of a Lender or Issuing 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 or Issuing Lender as specified in paragraph (a) or (b) above, as the case may be, and (iiiii) the calculation of such amount or amounts under referred to in the preceding clause (a) or (b) abovei), shall be delivered to the Borrower (with a copy to or the Administrative Agent) promptly after such Lender determines it is entitled to compensation under this Section 2.10, relevant Subsidiary Borrower and shall be conclusive and binding absent manifest error and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower or the relevant Subsidiary Borrower shall pay to the Administrative Agent for the account of such Lender or Issuing Lender, as the case may be, the amount shown as due on any such certificate within 15 days 10 Business 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 or Issuing 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 or Issuing 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 2.10 2.17 shall be available to each Lender and Issuing Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation, regulation or condition which shall have been imposed.
(e) Without prejudice Each Lender and Issuing Lender may make any Credit Extension to the survival Borrower or any Subsidiary Borrower through any Lending Office, provided that the exercise of any other obligations this option shall not affect the obligation of the Borrower hereunderor any Subsidiary Borrower to repay the Credit Extension in accordance with the terms of this Agreement. Each Lender and Issuing 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 2.17, Section 2.18, Section 2.23 or Section 2.26 or (ii) would require the Borrower or any Subsidiary Borrower to pay an increased amount under this Section 2.17, Section 2.18, Section 2.23 or Section 2.26, it will notify the Borrower and such Subsidiary Borrower of such event or condition and, to the extent not inconsistent with such Lender’s or Issuing Lender’s internal policies, will use its reasonable efforts to make, fund or maintain the affected Loans or Letters of Credit of such Lender or Issuing Lender, or, if applicable to participate in Letters of Credit, through another Lending Office of such Lender or Issuing 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 or Issuing 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 2.17, Section 2.18, Section 2.23 or Section 2.26 would be materially reduced or the Taxes payable under Section 2.23, or other amounts otherwise payable under this Section 2.17, Section 2.18 or Section 2.26 would be materially reduced, and if, as determined by such Lender or Issuing Lender, as the case may be, 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 or Issuing Lender. For the avoidance of doubt, nothing in this Section shall affect or postpone any of the obligations of the Borrower under this Section 2.10 shall survive for one year after or any Subsidiary Borrower or the termination of this Agreement and/or the payment or assignment rights of any of the Loans or NotesLender pursuant to Section 2.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if in the event that applicable law, treaty or regulation or directive from any government, governmental agency or regulatory authority enacted after the Closing Date date hereof, or any Regulatory Change change therein or in the interpretation or application thereof, or compliance by the Lender with any request or directive (whether or not having the force of law) enacted after the date hereof from any central bank or government, governmental agency or regulatory authority, shall:
(i) subjects any subject the Lender to any Taxes tax of any kind whatsoever (except taxes on the overall net income or gross receipts of the Lender) with respect to this Agreement, the Notes or any of the Loans made by it, or change the basis of taxation of payments to the Lender of principal, interest or any other than amount payable hereunder or thereunder (x) Non-Excluded Taxes or Taxes described except for changes in clause (i) or the rate of tax on the overall net income of the Lender);
(ii) of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (ii) shall impose, modify, modify or deem hold applicable any reserve, special deposit, compulsory loan or similar requirement with respect to any LIBOR Loan (or participating interest therein), requirements against assets ofheld by, or deposits with or other liabilities in or for the account of, advances or loans or other extensions of credit extended by, such Lender under this Agreementor any other acquisition of funds by, or any office of the Lender, including (without limitation) pursuant to Regulations of the Board of Governors of the Federal Reserve System; or
(iii) with respect in the sole but reasonable opinion of the Lender, cause the Notes, any Loans or this Agreement to be included in any LIBOR Loan, shall calculations used in the computation of regulatory capital standards; or
(iv) impose on such the Lender or the London interbank market any other condition affecting this Agreement or any LIBOR Loan made by such Lender, material condition; and the result of any of the foregoing shall be is to increase the cost to such the Lender of making making, converting into, continuing and/or maintaining the Loans (or maintaining any LIBOR Loan part thereof) by an amount that the Lender deems to be material, or to reduce the amount of any sum received or receivable by such Lender hereunder payment (whether of principal, interest, interest or otherwise) in with respect thereof of any of the Loans by an amount deemed in good faith by such that the Lender to be deems material, then then, in any case, the Borrower shall promptly pay to the Administrative Agent for the account of such Lender Lender, upon its demand, such additional amount or amounts as will necessary, in the reasonable judgment of the Lender, to compensate such the Lender for such increase additional costs or reduction to such Lenderreduction, to as the extent such amounts have not been included in case may be (collectively the calculation of the LIBOR Rate, upon demand by such Lender (through the Administrative Agent"ADDITIONAL COSTS").
(b) If any the Lender shall have determined in good faith that the adoption after the date hereof of any Regulatory Change applicable law, rule, regulation, agreement or guideline regarding capital adequacy, or liquidity requirements any change after the date hereof in any such law, rule, regulation, agreement or 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 charged with the interpretation or administration thereof, or compliance by any the Lender (or its Parent or any lending office of such the Lender) 's holding company, if any, with any request or directive regarding capital or liquidity requirements adequacy (whether or not having the force of Lawlaw and whether or not failure to comply therewith would be unlawful, so long as the Lender believes in good faith that such has the force of law or that the failure to so comply would be unlawful) of any Tribunal, monetary authoritysuch Government Authority, central bank, bank or comparable agency, has or would have the effect of reducing the rate of return on such any of the Lender’s ('s capital or its Parent’s) on the capital of the Lender's holding company, if any, as a consequence of its obligations hereunder this Agreement or the Loans to a level below that which such the Lender (or its Parent) the Lender's holding company could have achieved but for such Regulatory Changeapplicability, adoption, change or compliance (taking into consideration such the Lender’s 's policies and the policies of the Lender's holding company with respect to capital and liquidity requirementsadequacy) by an amount deemed in good faith by such the Lender to be material, then from time to timethen, promptly upon demand, the Borrower shall immediately pay to the Administrative Agent for Lender, from time to time as specified by the account of such Lender Lender, such additional amount or amounts as will shall be sufficient to compensate such the Lender for such reduction upon demand by such Lender (through the Administrative Agent)reduced return.
(c) A certificate of a the 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 the Lender or the Lender's holding company, as applicable, as specified in paragraph subsections (a) or and (b) above, as the case may be, (iii) the calculation of such amount or amounts under clause (a) or (b) above, this Section 2.14 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 and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower shall pay to the Administrative Agent for the account of such Lender the amount shown as to be due on any such certificate delivered by it within 15 ten (10) 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 methodreceipt.
(d) The protection of this Section 2.10 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) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of 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 or Notes.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding If the adoption of or any change in any Applicable Law or in the interpretation or application thereof or compliance by any Credit Party with any request or directive (whether or not having the force of law) from any central bank or other provision herein, if after Governmental Authority made subsequent to the Closing Date any Regulatory Change Date:
(i) subjects any Lender shall subject such Credit Party to any Taxes (other than (xA) Non-Excluded Indemnified Taxes or and (B) Taxes described in clause (i) or clauses (ii) through (iv) of the first sentence in Section 2.19(adefinition of Excluded Taxes and (C) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial positionConnection Income Taxes) on its loans, loan principal 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 hold applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement with respect to any LIBOR Loan (or participating interest therein), against assets ofheld by, deposits with or other liabilities in or for the account of, advances, loans or other extensions of credit extended (or participations therein) by, or any other acquisition of funds by, any office of such Lender under this Agreement, or that is not otherwise included in the determination of the LIBOR Spread; or
(iii) with respect to any LIBOR Loan, shall impose on such Lender or the London interbank market Credit Party any other condition affecting this Agreement or any LIBOR Loan made by such Lender, (other than Taxes); 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 to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principalCredit Party, interest, or otherwise) in respect thereof by an amount deemed in good faith by that such Lender Credit Party deems to be material, then of making, converting into, continuing or maintaining Loans or issuing or participating in Letters of Credit, or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay such Credit Party, upon its demand, any additional amounts necessary to compensate such Credit Party for such increased cost or reduced amount receivable. If any Credit Party becomes entitled to claim any additional amounts pursuant to this paragraph, it shall promptly notify the Borrower (with a copy 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, to the extent such amounts have not been included in the calculation Agent) of the LIBOR Rate, upon demand event by such Lender (through the Administrative Agent)reason of which it has become so entitled.
(b) If If, after the Closing Date, any Lender shall have determined in good faith that the adoption after the date hereof of or any Regulatory Change change after the date hereof in any applicable law, rule, regulation or guideline regarding capital adequacy or liquidity requirements 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 its Parent or any lending office Lending Office of such Lender) with any request or directive regarding capital adequacy or liquidity requirements (in each case, whether or not having the force of Lawlaw) of any Tribunal, monetary authoritysuch Governmental Authority, central bank, bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s (capital or its Parent’s) on the capital of such Lender’s holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its Parentholding company) could have achieved but for such Regulatory Changeapplicability, 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 and liquidity requirementsadequacy or liquidity) 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 (or its holding company) such additional amount or amounts as will compensate such Lender or such holding company for such reduction upon demand by such Lender (through the Administrative Agent)Lender.
(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 under referred to in the preceding clause (a) or (b) abovei), 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 and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower shall pay to the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 15 days 20 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; provided that the Borrower shall not be required to pay the Administrative Agent for the account of such compensate a Lender pursuant to this Section 2.10 for any amount specified in clause (a) increased cost or (b) above in respect of a period occurring reduction incurred more than 180 days six months prior to the date on which that such Lender notifies the Borrower of such Regulatory Change change in law and that such Lender’s intention Lender intends to claim demand compensation therefor; provided, exceptfurther, that if such increased cost is retroactive in nature, then the Regulatory Change giving rise six month period referred to any amount specified in clause (a) or (b) above is retroactive, no such time limitation the previous proviso shall apply so long as such Lender requests compensation within 180 days from be extended to include the date on which the applicable Tribunal informed such Lender period of such Regulatory Changeretroactive effect thereof. 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) The protection of this Section 2.10 2.16 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) Without prejudice 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 2.16, Section 2.17, Section 2.22 or Section 2.24(g) or (ii) would require the Borrower to pay an increased amount under this Section 2.16, Section 2.17, Section 2.22(d) or Section 2.24(g), it will, if requested by the Borrower, use its reasonable efforts (subject to the survival overall policy considerations of such Lender) 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 2.16, Section 2.17, Section 2.22 or Section 2.24(g) would be materially reduced or the Taxes or other obligations amounts otherwise payable under this Section 2.16, Section 2.17 or Section 2.22(d) would be materially reduced, and if, as determined by such Lender, in its sole reasonable discretion, the making, funding or maintaining of the Borrower hereunder, such Loans or Letters of Credit through such other Lending Office would not otherwise materially adversely affect such Loans or Letters of Credit; provided that nothing in Section 2.29 shall affect or postpone any of the obligations of the Borrower under this Section 2.10 shall survive for one year after or the termination of this Agreement and/or the payment or assignment rights of any Lender pursuant to Section 2.16 or 2.22.
(f) Notwithstanding anything herein to the contrary, (i) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or by United States or foreign regulatory authorities, in each case pursuant to Basel III, and (ii) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof, shall in each case be deemed to be a change in law, regardless of the Loans date enacted, adopted, issued or Notesimplemented.
Appears in 1 contract
Samples: Credit Agreement (PHH Corp)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the Closing Date date of this Agreement any Regulatory Change (i) subjects any Lender shall change the basis of taxation of payments to any Taxes Bank of the principal of or interest on any Eurodollar Loan or Fixed Rate Loan made by such Bank or any other fees or amounts payable hereunder (other than (x) Non-Excluded Taxes imposed on or Taxes described measured by the capital, receipts or franchises of such Bank or the overall gross or net income of such Bank by the jurisdiction in clause which such Bank has its principal office or by any political subdivision or taxing authority therein (i) or (ii) of the first sentence in Section 2.19(aany 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 Tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender Bank to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable theretorequirement), (ii) shall impose, modify, or deem applicable any reserve, special deposit, or similar requirement with respect to any LIBOR Eurodollar Loan (or participating interest therein), against assets of, deposits with or for the account of, or credit extended by, such Lender Bank under this AgreementAgreement (without duplication of any amounts paid pursuant to Section 2.9(d)), or (iii) with respect to any LIBOR Eurodollar Loan, shall impose on such Lender Bank or the London interbank market Eurodollar Interbank Market any other condition affecting this Agreement or any LIBOR Eurodollar Loan made by such LenderBank, and the result of any of the foregoing shall be to materially increase the actual cost to such Lender Bank of maintaining its Commitment or of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan or to materially 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 to be materialthereof, then the Borrower Company shall pay to the Administrative Agent for the account of such Lender Bank, within ten days following delivery to the Company of the certificate specified in paragraph (c) below by such Bank, such additional amount or amounts as will compensate reimburse such Lender Bank for such increase or reduction to such Lender, Bank to the extent such amounts have not been included in the calculation of the LIBOR Rate, upon demand by such Lender (through the Administrative Agent)reasonably allocable to this Agreement.
(b) If any Lender Bank shall have determined in good faith that any Regulatory Change regarding capital or liquidity requirements adequacy or compliance by any Lender Bank (or its Parent parent or any lending office of such LenderBank) with any request or directive regarding capital or liquidity requirements adequacy (whether or not having the force of Law) of any Tribunal, monetary authority, central bank, or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s Bank's (or its Parent’sparent's) capital as a consequence of its obligations hereunder to a level below that which such Lender Bank (or its Parentparent) could have achieved but for such Regulatory Change, or compliance (taking into consideration such Lender’s Bank's policies with respect to capital and liquidity requirementsadequacy) by an amount deemed in good faith by such Lender Bank to be material, then from time to time, the Borrower Company shall pay to the Administrative Agent for the account of such Lender Bank, within ten days following delivery to the Company of the certificate specified in paragraph (c) below by such Bank, such additional amount or amounts as will compensate reimburse such Lender Bank (or its parent) for such reduction upon demand by such Lender (through the Administrative Agent)reduction.
(c) Each Bank shall notify the Company of any event occurring after the date hereof entitling such Bank to compensation under paragraph (a) or (b) of this Section 2.13 (together with a good faith estimate of the amounts it would be entitled to claim in respect of such event) as promptly as practicable, but in any event on or before the date which is 60 days after the related Regulatory Change or other event; provided that (i) if such Bank fails to give such notice by such date, such Bank shall, with respect to compensation payable pursuant to paragraph (a) or (b) of this Section 2.13 in respect of any costs resulting from such Regulatory Change or other event, only be entitled to payment under paragraph (a) or (b) of this Section 2.13 for costs incurred from and after the date of such notice and (ii) such Bank will take such reasonable actions, if any (including the designation of a different Applicable Lending Office for the Loans of such Bank affected by such event) to avoid the need for, or reduce the amount of, such compensation so long as such actions will not, in the reasonable opinion of such Bank, be materially disadvantageous to such Bank. A certificate of a Lender Bank setting forth in reasonable detail (i) the Regulatory Change or other event giving rise to such any costs, (ii) such amount or amounts as shall be necessary to compensate reimburse such Lender Bank (or participating banks or other entities pursuant to Section 8.11) as specified in paragraph (a) or (b) aboveof this Section 2.13, as the case may be, and (iii) the calculation of such amount or amounts under clause (a) or (b) aboveamounts, shall be delivered to the Borrower Company (with a copy to the Administrative Agent) promptly after such Lender Bank determines it is entitled to compensation payment under this Section 2.102.13, and shall be conclusive and binding absent manifest error 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 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 Changeerror. In preparing such certificate, such Lender Bank 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) The protection of In the event any Bank shall seek payment pursuant to this Section 2.10 2.13 or the events contemplated under Section 2.11 or Section 2.14 shall have occurred with respect to any Bank, the Company may, provided no Event of Default has occurred and is continuing, give notice to such Bank (with copies to the Agents) that it wishes to seek one or more assignees (which may be available to each Lender regardless of any possible contention of invalidity one or inapplicability more of the lawBanks, regulationbut which may not be a Person who would be entitled at such time to claim payment pursuant to this Section 2.13 or with respect to which any of the events contemplated under Section 2.11 or Section 2.14 would exist at such time if such Person were a Bank under this Agreement) to assume the Commitment of such Bank and to purchase its outstanding Loans and Notes (if any). Each Bank requesting payment pursuant to this Section 2.13, or condition with respect to which any of the events contemplated under Section 2.11 or Section 2.14 have occurred, agrees to sell its Commitment, Loans, Notes (if any), and interest in this Agreement and the other Loan Papers pursuant to Section 8.11(c) to any such assignee approved by the Company and the Administrative Agent for an amount equal to the sum of the outstanding unpaid principal of and accrued interest on such Loans and Notes (if any) plus all other fees and amounts (including, without limitation, any payment claimed by such Bank under this Section, 2.13 and as to which such Bank has delivered the certificate required by Section 2.13(c) on or before the date such Commitment, Loans, and Notes (if any) are purchased) due such Bank hereunder calculated, in each case, to the date such Commitment, Loans, Notes (if any) and interest are purchased, whereupon such Bank shall have been imposedno further Commitment or other obligation to the Company hereunder or under any other Loan Paper.
(e) Notwithstanding anything herein to the contrary, no Bank or participant shall be entitled to any payment under this Section 2.13 with respect to any Competitive Loan.
(f) Without prejudice to the survival of any other obligations of the Borrower Company hereunder, the obligations of the Borrower Company under this Section 2.10 2.13 shall survive for one year after the termination of this Agreement and/or the payment or assignment of any of the Loans or Notes.
Appears in 1 contract
Samples: 364 Day Competitive Advance and Revolving Credit Facility Agreement (Southwest Airlines Co)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the Closing Date any Regulatory Change if, by reason of (i) subjects after the date hereof, the introduction of or any Lender to change (including any Taxes (other than (xchange by way of imposition or increase of reserve requirements) Non-Excluded Taxes in or Taxes described in clause (i) the interpretation of any law or regulation, or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority or quasi-Governmental Authority exercising control over banks or financial institutions generally (whether or not having the force of the first sentence in Section 2.19(a) or (ylaw) any Tax that would not have been reserve (including any imposed but for by the failure of any Lender to comply with any certificationFederal Reserve Board), information, documentation, special deposit or other reporting similar requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (ii) shall impose, modify, or deem applicable any including a reserve, special deposit, deposit or similar requirement with respect to any LIBOR Loan (or participating interest therein), that takes the form of a tax) against assets of, deposits with or for the account of, or credit extended by, such Lender under this Agreement, any Participant's office through which it funds its obligations hereunder shall be imposed or (iii) with respect to any LIBOR Loan, shall impose on such Lender deemed applicable or the London interbank market any other condition affecting this Agreement its obligation to make or any LIBOR Loan made by such Lender, and maintain its Funded Participant's Interest at a rate based upon the result of any of the foregoing Adjusted LIBO Rate shall be to imposed on any Participant or its office through which it funds its obligations hereunder or the interbank Eurodollar market; and as a result thereof there shall be any increase in the cost to such Lender Participant of making agreeing to make or making, funding or maintaining any LIBOR Loan funds its obligations hereunder (except to the extent already included in the determination of the applicable Adjusted LIBO Rate), or to reduce there shall be a reduction in the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest, that Participant or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be materialits office through which it funds its obligations hereunder, then the Borrower Sponsor shall from time to time, upon written notice from and demand by the Participant (with a copy of such notice and demand to the Servicer), pay to the Administrative Agent Servicer for the account of that Participant within five Business Days after the date specified in such Lender notice and demand, additional amounts sufficient to indemnify that Participant against such additional amount or amounts increased cost. A certificate as will compensate such Lender for such increase or reduction to such Lender, to the extent amount of such amounts have not been included in increased cost submitted to the calculation of Sponsor and the LIBOR RateServicer by that Participant, upon demand by such Lender (through the Administrative Agent)shall, except for manifest error, be final, conclusive and binding for all purposes.
(b) If while the Commitment or any Lender shall have determined in good faith Loan Commitments are outstanding, any Participant (including any the Servicer) determines that the adoption of any Regulatory Change law, rule or regulation regarding capital adequacy or liquidity requirements capital maintenance, or any change in any of the foregoing or 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 Participant (or its Parent or any lending office of such LenderParticipant) or any Participant's holding company with any request or directive regarding capital adequacy or liquidity requirements capital maintenance (whether or not having the force of Lawlaw) of any Tribunal, monetary such authority, central bank, bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s (Participant's capital or its Parent’s) on the capital of such Participant's holding company, if any, as a consequence of its obligations hereunder this Agreement, the Loan Documents or the purchases made by such Participant pursuant hereto to a level below that which such Lender (Participant or its Parent) such Participant's holding company could have achieved but for such Regulatory Changeadoption, change or compliance (taking into consideration such Lender’s Participant's policies and the policies of such Participant's holding company with respect to capital and liquidity requirementsadequacy) by an amount reasonably deemed in good faith by such Lender Participant to be material, then from time to time, within 15 days after written demand by such Participant, the Borrower shall Sponsor pay to the Administrative Agent for the account of such Lender Participant such additional amount or amounts as will compensate such Lender Participant or such Participant's holding company for such reduction upon demand reduction. A certificate as to the amount of any such additional amount or amounts, submitted to the Sponsor and the Servicer by such Lender (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 costsParticipant, (ii) such amount or amounts as shall shall, except for manifest error, be necessary to compensate such Lender as specified in paragraph (a) or (b) abovefinal, as the case may be, (iii) the calculation of such amount or amounts under clause (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 error 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 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 methodall purposes.
(d) The protection of this Section 2.10 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) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of 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 or Notes.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the Closing Date date of this Agreement any Regulatory Change or change in any Law (i) subjects any Lender shall subject the Paying Agent, a Bank or an Issuing Bank to any Taxes (other than (w) Indemnified Taxes, (x) Non-Excluded Taxes or Taxes described in clause clauses (ia), (b), (c) or and (iie) of the first sentence in Section 2.19(a) or Excluded Taxes, (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certificationOther Taxes and (z) Other Connection Taxes on gross or net income, information, documentation, profits or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal revenue (including value-added or commercial positionsimilar Taxes)) on its loans, loan principal principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (ii) shall impose, modify, or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement with respect to any LIBOR Eurodollar Loan (or participating interest therein), against assets of, deposits with or for the account of, or credit extended by, such Lender Bank under this AgreementAgreement (without duplication of any amounts paid pursuant to Section 2.8(c)), or (iii) with respect to any LIBOR Eurodollar Loan, shall impose on such Lender Bank or the London interbank market Eurodollar Interbank Market any other condition condition, cost or expense affecting this Agreement or any LIBOR Eurodollar Loan made by such LenderBank, and the result of any of the foregoing shall be to materially increase the actual cost to such Lender Bank (or such Paying Agent or Issuing Bank in the case of making (i)) of maintaining its Commitment or of making, converting to, continuing or maintaining any LIBOR Eurodollar Loan or to materially reduce the amount of any sum received or receivable by such Lender Bank (or such Paying Agent or Issuing Bank in the case of (i)) hereunder (whether of principal, interest, or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be materialthereof, then the Borrower Company shall pay to the Administrative Paying Agent for the account of such Lender Bank (or such Paying Agent or Issuing Bank in the case of (i)), within ten days following delivery to the Company of the certificate specified in paragraph (c) below by such Bank (or such Paying Agent or Issuing Bank in the case of (i)), such additional amount or amounts as will compensate reimburse such Lender Bank (or such Paying Agent or Issuing Bank in the case of (i)) for such increase or reduction to such Lender, Bank (or such Paying Agent or Issuing Bank in the case of (i)) to the extent such amounts have not been included in the calculation of the LIBOR Rate, upon demand by such Lender (through the Administrative Agent)reasonably allocable to this Agreement.
(b) If any Lender Bank shall have determined in good faith that any Regulatory Change regarding capital or liquidity requirements or compliance by any Lender Bank (or its Parent parent or any lending office of such LenderBank) with any request or directive issued subsequent to the Effective Date regarding capital or liquidity requirements (whether or not having the force of Law) of any Tribunal, monetary authority, central bank, or comparable agency, has or would have the effect of reducing the rate of return on such LenderBank’s (or its Parentparent’s) capital as a consequence of its obligations hereunder to a level below that which such Lender Bank (or its Parentparent) could have achieved but for such Regulatory Change, or compliance (taking into consideration such LenderBank’s policies with respect to capital and liquidity requirementsadequacy or liquidity) by an amount deemed in good faith by such Lender Bank to be material, then from time to time, the Borrower Company shall pay to the Administrative Paying Agent for the account of such Lender Bank, within ten days following delivery to the Company of the certificate specified in paragraph (d) below by such Bank, such additional amount or amounts as will compensate reimburse such Lender Bank (or its parent) for such reduction upon demand by such Lender (through the Administrative Agent)reduction.
(c) Notwithstanding anything herein to the contrary, (i) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or by United States or foreign regulatory authorities, in each case pursuant to Basel III, and (ii) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof, shall in each case be deemed to be a Regulatory Change and a change in Law, regardless of the date enacted, adopted or issued.
(d) Each Bank or the Paying Agent or each Issuing Bank shall notify the Company of any event occurring after the date hereof entitling such Bank to compensation under paragraph (a) or (b) of this Section 2.12 (together with a good faith estimate of the amounts it would be entitled to claim in respect of such event) as promptly as practicable, but in any event on or before the date which is 60 days after the related Regulatory Change, change in any Law or other event; provided that (i) if such Bank or the Paying Agent or such Issuing Bank fails to give such notice by such date, such Bank or the Paying Agent or such Issuing Bank shall, with respect to compensation payable pursuant to paragraph (a) or (b) of this Section 2.12 in respect of any costs resulting from such Regulatory Change, change in any Law or other event, only be entitled to payment under paragraph (a) or (b) of this Section 2.12 for costs incurred from and after the date of such notice and (ii) such Bank or the Paying Agent or such Issuing Bank will take such reasonable actions, if any (including the designation of a different Applicable Lending Office for the Loans of such Bank affected by such event) to avoid the need for, or reduce the amount of, such compensation so long as such actions will not, in the reasonable opinion of such Bank or the Paying Agent or such Issuing Bank, be materially disadvantageous to such Bank or the Paying Agent or such Issuing Bank, as the case may be. A certificate of a Lender Bank or the Paying Agent or such Issuing Bank setting forth in reasonable detail (i) the Regulatory Change Change, change in any Law or other event giving rise to such any costs, (ii) such amount or amounts as shall be necessary to compensate reimburse such Lender Bank or the Paying Agent or such Issuing Bank (or participating banks or other entities pursuant to Section 9.11) as specified in paragraph (a) or (b) aboveof this Section 2.12, as the case may be, and (iii) the calculation of such amount or amounts under clause (a) or (b) aboveamounts, shall be delivered to the Borrower Company (with a copy to the Administrative Paying Agent) promptly after such Lender Bank or the Paying Agent or such Issuing Bank determines it is entitled to compensation payment under this Section 2.102.12, and shall be conclusive and binding absent manifest error 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 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 Changeerror. In preparing such certificate, such Lender Bank or the Paying Agent or such Issuing Bank 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.
(de) The protection of In the event any Bank shall seek payment pursuant to this Section 2.12 or the events contemplated under Section 2.10 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation, or condition which Section 2.13 shall have been imposedoccurred with respect to any Bank, the Company shall have the right to replace such Bank with, and add as “Banks” under this Agreement in place thereof, one or more assignees as provided in Section 2.23(b).
(ef) Without prejudice to the survival of any other obligations of the Borrower Company hereunder, the obligations of the Borrower Company under this Section 2.10 2.12 shall survive for one year after the termination of this Agreement and/or the payment or assignment of any of the Loans or Notes.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Southwest Airlines Co)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the Closing Date date of this Agreement any Regulatory Change (i) subjects any Lender shall change the basis of taxation of payments to any Taxes Bank of the principal of or interest on any Eurodollar Loan or Fixed Rate Loan made by such Bank or any other fees or amounts payable hereunder (other than (x) Non-Excluded Taxes imposed on or Taxes described measured by the capital, receipts or franchises of such Bank or the overall gross or net income of such Bank by the jurisdiction in clause which such Bank has its principal office or by any political subdivision or taxing authority therein (i) or (ii) of the first sentence in Section 2.19(aany 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 Tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender Bank to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable theretorequirement), (ii) shall impose, modify, or deem applicable any reserve, special deposit, or similar requirement with respect to any LIBOR Eurodollar Loan (or participating interest therein), against assets of, deposits with or for the account of, or credit extended by, such Lender Bank under this AgreementAgreement (without duplication of any amounts paid pursuant to Section 2.9(d)), or (iii) with respect to any LIBOR Eurodollar Loan, shall impose on such Lender Bank or the London interbank market Eurodollar Interbank Market any other condition affecting this Agreement or any LIBOR Eurodollar Loan made by such LenderBank, and the result of any of the foregoing shall be to materially increase the actual cost to such Lender Bank of maintaining its Commitment or of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan or to materially 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 to be materialthereof, then the Borrower Company shall pay to the Administrative Agent for the account of such Lender Bank, within ten days following delivery to the Company of the certificate specified in paragraph (c) below by such Bank, such additional amount or amounts as will compensate reimburse such Lender Bank for such increase or reduction to such Lender, Bank to the extent such amounts have not been included reasonably allocable to this Agreement. Notwithstanding the foregoing, in the calculation no event shall any Bank be permitted to receive any payment hereunder constituting interest in excess of the LIBOR Highest Lawful Rate, upon demand by such Lender (through the Administrative Agent).
(b) If any Lender shall have determined in good faith that any Regulatory Change regarding capital or liquidity requirements or compliance by any Lender (or its Parent or any lending office of such Lender) with any request or directive regarding capital or liquidity requirements (whether or not having the force of Law) of any Tribunal, monetary authority, central 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 as a consequence of its obligations hereunder to a level below that which such Lender (or its Parent) could have achieved but for such Regulatory Change, or compliance (taking into consideration such Lender’s policies with respect to capital and liquidity requirements) by an amount deemed in good faith 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 (through the Administrative Agent).
(c) A certificate Each Bank shall notify the Company of a Lender setting forth in reasonable detail (i) any event occurring after the Regulatory Change or other event giving rise date hereof entitling such Bank to such costs, (ii) such amount or amounts as shall be necessary to compensate such Lender as specified in compensation under paragraph (a) or (b) above, as of this Section 2.13 (together with a good faith estimate of the case may be, (iii) the calculation amounts it would be entitled to claim in respect of such amount event) as promptly as practicable, but in any event on or amounts under clause before the date which is 60 days after the related Regulatory Change or other event; provided that (i) if such Bank fails to give such notice by such date, such Bank shall, with respect to compensation payable pursuant to paragraph (a) or (b) aboveof this Section 2.13 in respect of any costs resulting from such Regulatory Change or other event, shall only be delivered to the Borrower (with a copy to the Administrative Agent) promptly after such Lender determines it is entitled to compensation payment under this Section 2.10, and shall be conclusive and binding absent manifest error 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 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 paragraph (a) or (b) above in respect of this Section 2.13 for costs incurred from and after the date of such notice and (ii) such Bank will take such reasonable actions, if any (including the designation of a period occurring more than 180 days prior to different Applicable Lending Office for the date on which such Lender notifies the Borrower Loans of such Regulatory Change and Bank affected by such Lender’s intention event) to claim avoid the need for, or reduce the amount of, such 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 actions will not, in the date on which the applicable Tribunal informed such Lender reasonable opinion 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.Bank,
(d) The protection of In the event any Bank shall seek payment pursuant to this Section 2.10 2.13 or the events contemplated under Section 2.11 or Section 2.14 shall have occurred with respect to any Bank, the Company may, provided no Event of Default has occurred and is continuing, give notice to such Bank (with copies to the Agents) that it wishes to seek one or more Eligible Assignees (which may be one or more of the Banks, but which may not be a Person who would be entitled at such time to claim payment pursuant to this Section 2.13 or with respect to which any of the events contemplated under Section 2.11 or Section 2.14 would exist at such time if such Person were a Bank under this Agreement) to assume the Commitment of such Bank and to purchase its outstanding Loans and Notes (if any). Each Bank requesting payment pursuant to this Section 2.13, or with respect to which any of the events contemplated under Section 2.11 or Section 2.14 have occurred, agrees to sell its Commitment, Loans, Notes (if any), and interest in this Agreement and the other Loan Papers pursuant to Section 8.11(c) to any such Eligible Assignee approved by the Company and the Administrative Agent for an amount equal to the sum of the outstanding unpaid principal of and accrued interest on such Loans and Notes (if any) plus all other fees and amounts (including, without limitation, any payment claimed by such Bank under this Section 2.13 and as to which such Bank has delivered the certificate required by Section 2.13(c) on or before the date such Commitment, Loans, and Notes (if any) are purchased) due such Bank hereunder calculated, in each case, to the date such Commitment, Loans,
(e) Notwithstanding anything herein to the contrary, no Bank or participant 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 imposedpayment under this Section 2.13 with respect to any Competitive Loan.
(ef) Without prejudice to the survival of any other obligations of the Borrower Company hereunder, the obligations of the Borrower Company under this Section 2.10 2.13 shall survive for one year after the termination of this Agreement and/or the payment or assignment of any of the Loans or Notes.
Appears in 1 contract
Samples: Competitive Advance and Revolving Credit Facility Agreement (Southwest Airlines Co)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if If after the Closing Date date of this Agreement any Regulatory 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 but with respect to which similarly situated banks generally comply) (any such change, an "Increased Cost Change")
(i) subjects any Lender shall change the basis of taxation of payments to any Taxes Bank of the principal of or interest on any Eurodollar Loan or Fixed Rate Loan made by such Bank or any other fees or amounts payable hereunder (other than (x) Non-Excluded Taxes taxes imposed on the overall net income of such Bank by the jurisdiction in which such Bank has its principal or Taxes described in clause lending office or by any political subdivision or taxing authority therein (i) or (ii) of the first sentence in Section 2.19(aany 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 tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender Bank to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligationsrequirement), 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 participating interest therein), against assets of, deposits with or for the account of, or credit extended by, such Lender under this Agreement, Bank or (iii) with respect to any LIBOR Loan, shall impose on such Lender Bank or on the London interbank market Interbank Market any other condition affecting this Agreement or any LIBOR Eurodollar 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 or to reduce the amount of any sum received or receivable by such Lender Bank hereunder (whether of principal, interest, 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 the Administrative Agent for the account of such Lender Section 2.07(d) hereof, 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, Bank as provided in Section 2.07(c) hereof. Any such amount determined pursuant to this Section 2.07(a) shall be computed on the extent such amounts have not been included in the calculation basis of the LIBOR Rate, upon demand net effect of any Increased Cost Changes incurred by such Lender (through Bank from time to time after the Administrative Agent)Effective Date of this Agreement.
(b) If any Lender Bank shall have determined in good faith that the adoption or issuance, after the date of this Agreement, of any Regulatory Change regarding capital or liquidity requirements or compliance by any Lender (or its Parent or any lending office of such Lender) with any applicable law, rule, regulation, guideline, request or directive regarding capital or liquidity requirements adequacy (whether or not having the force of Lawlaw but with respect to which similarly situated banks generally comply) of (a "Capital Adequacy Rule"), or any Tribunalchange therein, monetary or any change in the interpretation or administration thereof by any governmental authority, central bankbank or comparable agency charged with the interpretation or administration thereof (any such adoption, issuance or change of a Capital Adequacy Rule being called a "Capital Adequacy Change"), or comparable agencycompliance therewith by any Bank (or any lending office of such Bank), has or would have the net effect of reducing the rate of return on such Lender’s (or its Parent’s) Bank's capital as a consequence of its obligations commitment to make, or the making or maintaining of, any Loans hereunder to a level below that which such Lender (or its Parent) could Bank would have achieved but for such Regulatory Changeadoption, change or compliance (taking into consideration such Lender’s Bank's policies with respect to capital adequacy and liquidity requirementsany Capital Adequacy Rule in effect as of the date of this Agreement) by an amount deemed in good faith by such Lender Bank to be material, then from time to timetime the Company shall, the Borrower shall subject to Section 2.07(d) hereof, 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 as provided in Section 2.07(c) hereof; provided, however, that to the extent (i) a Bank shall increase its level of capital above the level maintained by such Lender Bank on the date of this Agreement and there has not been a Capital Adequacy Change, or (through ii) there has been a Capital Adequacy Change and a Bank shall increase its level of capital by an amount greater than the Administrative Agent).increase attributable (taking into consideration the same variables taken into consideration in determining the level of capital maintained by such Bank on the date of this Agreement) to such Capital Adequacy Change, the Company shall not be required to pay any amount or amounts
(c) A certificate of a Lender each Bank 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 Bank (or Participant pursuant to Section 10.06(b) hereof) as specified in paragraph (a) or (b) aboveof this Section 2.07, as the case may be, shall be delivered to the Company at the end of each Calendar Quarter during which such Bank is an Affected Bank and upon the taking by the Company in respect of such Bank of one of the actions described in paragraph (iiie)(ii) or (e)(iv) of this Section 2.07 and shall, if submitted in good faith, be conclusive absent manifest error; provided that any certificate delivered by a Bank pursuant to this Section 2.07(c) shall (i) in the case of a certificate in respect of amounts payable pursuant to paragraph (a) of this Section 2.07, set forth in reasonable detail the basis for and the calculation of such amounts, and (ii) in the case of a certificate in respect of amounts payable pursuant to paragraph (b) of this Section 2.07, (A) set forth at least the same amount of detail in respect of the calculation of such amount or amounts under clause (a) or (b) above, shall be delivered to the Borrower (with a copy to the Administrative Agent) promptly after as such Lender determines it is entitled to compensation under this Section 2.10, and shall be conclusive and binding absent manifest error and (iv) confirmation from such Lender that such costs are also being assessed Bank provides in similar circumstances to other similarly situated borrowersborrowers from such Bank, and (B) include a statement by such Bank that it has allocated to its Revolving Credit Commitment or outstanding Loans a proportionately equal amount of any reduction of the rate of return on such Bank's capital due to a Capital Adequacy Rule as it has allocated to each of its other commitments to lend or to each of its other outstanding loans that are affected similarly by such Capital Adequacy Rule. The Borrower Company shall pay to the Administrative Agent for the account of such Lender each Bank the amount shown as due on any such certificate within 15 upon the earlier of (i) the date on which the Company takes one of the actions in respect of any such Bank described in paragraph (e)(ii) or (e)(iv) of this Section 2.07 and (ii) 30 days after its receipt of by the same; provided that the Borrower shall not be required to pay the Administrative Agent for the account Company of such Lender certificate.
(d) Subject to the following provisions of this Section 2.07(d), failure on the part of any Bank to demand compensation for any amounts payable pursuant to this Section 2.10 for any amount specified in clause paragraphs (a) or (b) above of this Section 2.07 with respect to any Interest Period shall not constitute a waiver of such Bank's rights to demand compensation for any such amounts with respect to any other Interest Period. In the case of any Increased Cost Change which is given retroactive effect to a date prior to the adoption thereof, a Bank shall be entitled to seek compensation in respect thereof pursuant to paragraph (a) of this Section 2.07 for the period commencing on such retroactive effective date and ending on the date on which the Company takes one of the actions in respect of such Bank described in paragraph (e)(ii) or (e)(iv) of this Section 2.07; provided, however, that (i) if such Bank shall fail to notify the Company within 30 days after the date of official promulgation of such Increased Cost Change that it will demand such compensation, the period for which such Bank shall be entitled to seek compensation in respect thereof shall commence on the date which is 30 days prior to such Bank's notice that it will demand compensation, and (ii) if any Increased Cost Change is given retroactive effect to a period occurring date which is more than 180 days three months prior to the date of adoption thereof, the Company's liability to pay compensation to such Bank in respect thereof for any period prior to the date which is three months prior to the adoption thereof shall, subject to the foregoing clause (i) of this proviso, be equal to 50% of the amount required to compensate such Bank in respect of such Increased Cost Change with respect to such period. In the case of any Increased
(e) In the event that any Affected Bank shall have given notice that it is entitled to claim compensation pursuant to this Section 2.07, the Company may exercise any one or more of the following options: (i) If any such claim for compensation relates to Loans then being requested by the Company pursuant to a notice of Borrowing as provided in this Article II (or, in the case of claims for compensation pursuant to paragraph (g) of this Section 2.07, any such claim relates to Loans outstanding during the Interest Period most recently ended and the Company has requested Eurodollar Loans pursuant to such a notice of Borrowing), the Company may, not later than 12:00 noon, New York City time, on the day which is three (3) Business Days prior to the date on which such Lender notifies the Borrower requested Loans were to have been made, in the case of such Regulatory Change and such Lender’s intention to claim compensation thereforEurodollar Loans, exceptor not later than 9:00 a.m., if the Regulatory Change giving rise to any amount specified in clause (a) or (b) above is retroactiveNew York City time, no such time limitation shall apply so long as such Lender requests compensation within 180 days from on the date on which the applicable Tribunal informed such Lender requested Loans were to have been made, in the case of such Regulatory Change. In preparing such certificateFixed Rate Loans or Alternate Base Rate Loans, such Lender may employ such assumptions and allocations of costs and expenses as it by giving notice (by telephone (confirmed in writing promptly thereafter) or telecopier) to the Administrative Agent (which notice the Administrative Agent shall in good xxxxx xxxx reasonable and may use any reasonable averaging and attribution method.
(d) The protection of this Section 2.10 shall be available transmit to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation, or condition which shall have been imposedBanks otherwise required to participate in the requested Loans as soon as practicable thereafter) irrevocably withdraw such notice of Borrowing.
(e) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of 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 or Notes.
Appears in 1 contract
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, or Excluded Taxes if (i) after the Closing Date any Regulatory 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 (i) subjects any Lender to any Taxes (other than (x) Non-Excluded Taxes whether or Taxes described in clause (i) or (ii) not having the force of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable theretolaw), (ii) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or the compliance with any requests, rules, guidelines or directives thereunder or issued in connection therewith, regardless of the date enacted, adopted or issued or (iii) the compliance with any requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued (x) shall impose, modify, modify or deem applicable any reserve, special deposit, deposit or similar requirement with respect to any LIBOR Loan (or participating interest therein), against assets of, deposits with or for the account of, or credit extended or participated in by, such Lender under this Agreementany Lender, or (iiiy) with respect to any LIBOR Loan, shall impose on such any Lender or the London interbank market any other condition condition, cost or expense affecting this Agreement or any LIBOR Loan made by such LenderLender or (z) shall subject any Lender to any tax of any kind whatsoever with respect to this Agreement or any LIBOR Loan made by it, or change the basis of taxation of payments to such Lender in respect thereof, and the result of any of the foregoing shall be to increase the cost (other than, except as provided in clause (z), the amount of Taxes, if any) to such Lender of making making, converting to, continuing or maintaining any LIBOR Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender 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, 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, to the extent such amounts have not been included in the calculation of the LIBOR Rate, upon demand by such Lender (through the Administrative Agent).
(b) If Except with respect to Indemnified Taxes and Other Taxes, which shall be governed solely and exclusively by Section 2.23, or Excluded Taxes if (i) after the Closing Date, any Lender shall have determined in good faith that the adoption after the Closing Date of any Regulatory Change applicable law, rule, regulation or guideline regarding capital adequacy or liquidity requirements requirements, 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 its Parent or any lending office Lending Office of such Lender or such Lender’s holding company, if any) with any request or directive regarding capital adequacy or liquidity requirements (whether or not having the force of Lawlaw) of any Tribunal, monetary authoritysuch Governmental Authority, central bank, bank or comparable agency, (ii) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or the compliance with any requests, rules, guidelines or directives thereunder or issued in connection therewith, regardless of the date enacted, adopted or issued or (iii) the compliance with any requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, has or would have the effect of reducing the rate of return on such Lender’s (capital or its Parent’s) on the capital of such Lender’s holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its Parentsuch Lender’s holding company) could have achieved but for such Regulatory Change, or compliance the items referenced in clauses (i)-(iii) of this sentence (taking into consideration such Lender’s policies or the policies of such Lender’s holding company, as the case may be, with respect to capital adequacy and liquidity requirementsliquidity) 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 Lender (through the Administrative Agent)Lender.
(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 under referred to in the preceding clause (a) or (b) abovei), 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 and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower shall pay to the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 15 days 10 Business 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 2.10 2.17 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) Without prejudice Each Lender may make any Borrowing to the survival Borrower through any Lending Office, provided that the exercise of any other obligations this option shall not affect the obligation of the Borrower hereunderto repay the Borrowing in accordance with the terms of this Agreement. 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 2.17, Section 2.18, or Section 2.23 or (ii) would require the Borrower to pay an increased amount under this Section 2.17, Section 2.18 or Section 2.23, it will 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 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 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 pursuant to this Section 2.17, Section 2.18 or Section 2.23 would be materially reduced or the Taxes payable under Section 2.23, or other amounts otherwise payable under this Section 2.17, or Section 2.18 would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans through such other Lending Office would not otherwise materially adversely affect such Loans or such Lender. For the avoidance of doubt, nothing in this Section shall affect or postpone any of the obligations of the Borrower or the rights of any Lender pursuant to Section 2.23. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(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 2.18, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.23, the Borrower may (but subject in any such case to the payments required by Section 2.18), upon at least five Business Days’ prior written notice to such Lender and the Administrative Agent, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the amount of outstanding Loans from the Lender providing such notice and such Lender shall thereupon assign any Loans owing to such Lender to such replacement lending institution pursuant to Section 10.3. Such notice shall specify an effective date for such assignment and at the time thereof, the Borrower shall pay all accrued interest and all other amounts (including without limitation all amounts payable under this Section 2.10 shall survive Section) owing hereunder to such Lender as at such effective date for one year after the termination of this Agreement and/or the payment or assignment of any of the Loans or Notessuch assignment.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof applicable to any Lender, or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other provision hereinGovernmental Authority, in each case made subsequent to the Restatement Date (or, if after later, the Closing Date any Regulatory Change date on which such Lender becomes a Lender):
(i) subjects any Lender to any Taxes (other than (x) Non-Excluded Taxes or Taxes described in clause (i) or (ii) of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (ii) shall impose, modify, modify or deem hold applicable any reserve, special deposit, compulsory loan or similar requirement with respect to any LIBOR Loan (or participating interest therein), 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 office of such Lender under this Agreement, or which is not otherwise included in the determination of the LIBO Rate hereunder (iiiexcluding any Tax of any kind whatsoever); or
(ii) with respect to any LIBOR Loan, shall impose on such Lender or the London interbank market any other condition affecting this Agreement or (excluding any LIBOR 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 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 amounts necessary to the Administrative Agent for the account of such Lender such additional amount or amounts as will 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 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 extent such amounts have not been included in the calculation of the LIBOR RateBorrower, upon demand by such Lender (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. 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 1003651351v23 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 any Lender shall have determined that the adoption of or any change in good faith that any Regulatory Change Requirement of Law regarding capital adequacy or liquidity requirements or in the interpretation or application thereof or compliance by any such Lender (or its Parent or any lending office of corporation controlling such Lender) Lender with any request or directive regarding capital adequacy or liquidity requirements (whether or not having the force of Lawlaw) of from any TribunalGovernmental Authority, monetary authorityin each case, central bankmade subsequent to the Restatement Date, does or comparable agency, has or would shall have the effect of reducing the rate of return on such Lender’s (or its Parent’s) such corporation’s capital as a consequence of its such Lender’s obligations hereunder to a level below that which such Lender (or its Parent) such corporation could have achieved but for such Regulatory Change, change or compliance (taking into consideration such Lender’s or such corporation’s policies with respect to capital and liquidity requirementsadequacy or liquidity) by an amount deemed in good faith by such Lender or Issuing Bank to be material, 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 reduction. Such a certificate as to any additional amounts payable pursuant to this Section 2.14(b) submitted by such Lender (Lender, 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, (iii) the calculation of such amount or amounts under clause (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 in the absence of manifest error and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower shall pay Notwithstanding anything to the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 15 days after its receipt of the same; provided that contrary in this Section 2.14(b), the Borrower shall not be required to pay the Administrative Agent for the account of such compensate a Lender pursuant to this Section 2.10 2.14(b) for any amount specified in clause (a) or (b) above in respect of a period occurring amounts incurred more than 180 days six months prior to the date on which that such Lender notifies the Borrower of such Regulatory Change and 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, except, if the Regulatory Change giving rise six-month period first referred 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) The protection of this Section 2.10 sentence shall be available extended to each Lender regardless include the period of any possible contention of invalidity or inapplicability of the law, regulation, or condition which shall have been imposed.
(e) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of the Borrower under this Section 2.10 retroactive effect thereof). This covenant shall survive for one year after the termination of this Agreement and/or and the payment or assignment of any of the Loans and all other amounts payable hereunder.
(c) Notwithstanding anything herein to the contrary, (i) the Dxxx Xxxxx Wall Street Reform and Consumer Protection Act, and all requests, rules, regulations, guidelines and directives promulgated thereunder or Notes.issued in connection therewith, and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, in each case, shall be deemed to have been enacted, adopted, promulgated or issued, as applicable, subsequent to the Restatement Date for all purposes herein. 1003651351v23
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof applicable to any Lender, or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other provision hereinGovernmental Authority, in each case made subsequent to the Second Amendment Closing Date (or, if after later, the Closing Date any Regulatory Change date on which such Lender becomes a Lender):
(i) subjects any Lender to any Taxes (other than (x) Non-Excluded Taxes or Taxes described in clause (i) or (ii) of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (ii) shall impose, modify, modify or deem hold applicable any reserve, special deposit, compulsory loan or similar requirement with respect to any LIBOR Loan (or participating interest therein), 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 office of such Lender under this Agreement, or which is not otherwise included in the determination of the LIBO Rate hereunder (iiiexcluding any Tax of any kind whatsoever); or
(ii) with respect to any LIBOR Loan, shall impose on such Lender or the London interbank market any other condition affecting this Agreement or (excluding any LIBOR 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 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 amounts necessary to the Administrative Agent for the account of such Lender such additional amount or amounts as will 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 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 extent such amounts have not been included in the calculation of the LIBOR RateBorrower, upon demand by such Lender (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) (i) 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 or (ii) for any amounts, if such Lender is applying this provision to the Borrower in a manner that is inconsistent with its application of “increased cost” or other similar provisions under other credit agreements to similarly situated borrowers). This covenant shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) If any Lender shall have determined that the adoption of or any change in good faith that any Regulatory Change Requirement of Law regarding capital adequacy or liquidity requirements or in the interpretation or application thereof or compliance by any such Lender (or its Parent or any lending office of corporation controlling such Lender) Lender with any request or directive regarding capital adequacy or liquidity requirements (whether or not having the force of Lawlaw) of from any TribunalGovernmental Authority, monetary authorityin each case, central bankmade subsequent to the Second Amendment Closing Date, does or comparable agency, has or would shall have the effect of reducing the rate of return on such Lender’s (or its Parent’s) such corporation’s capital as a consequence of its such Lender’s obligations hereunder to a level below that which such Lender (or its Parent) such corporation could have achieved but for such Regulatory Change, change or compliance (taking into consideration such Lender’s or such corporation’s policies with respect to capital and liquidity requirementsadequacy or liquidity) by an amount deemed in good faith by such Lender or Issuing Bank to be material, 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 (Lender, 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, (iii) the calculation of such amount or amounts under clause (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 in the absence of manifest error and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower shall pay Notwithstanding anything to the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 15 days after its receipt of the same; provided that contrary in this Section 2.14(b), the Borrower shall not be required to pay the Administrative Agent for the account of such compensate a Lender pursuant to this Section 2.10 2.14(b) for any amount specified in clause (a) or (b) above in respect of a period occurring amounts incurred more than 180 days six months prior to the date on which that such Lender notifies the Borrower of such Regulatory Change and 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, except, if the Regulatory Change giving rise six-month period first referred 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) The protection of this Section 2.10 sentence shall be available extended to each Lender regardless include the period of any possible contention of invalidity or inapplicability of the law, regulation, or condition which shall have been imposed.
(e) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of the Borrower under this Section 2.10 retroactive effect thereof). This covenant shall survive for one year after the termination of this Agreement and/or and the payment or assignment of any of the Loans and all other amounts payable hereunder.
(c) Notwithstanding anything herein to the contrary, (i) the Xxxx Xxxxx Wall Street Reform and Consumer Protection Act, and all requests, rules, regulations, guidelines and directives promulgated thereunder or Notesissued in connection therewith, and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, in each case, shall be deemed to have been enacted, adopted, promulgated or issued, as applicable, subsequent to the Second Amendment Closing Date for all purposes herein.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the Closing Date date of this Agreement any Regulatory Change (i) subjects any Lender to any Taxes (other than (x) Non-Excluded Taxes in Law shall result in the imposition, modification or Taxes described in clause (i) or (ii) applicability of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (ii) shall impose, modify, or deem applicable any reserve, insurance charge, special deposit, deposit or similar requirement with respect to any LIBOR Loan (or participating interest therein), against assets of, deposits with or for the account of, of or credit extended by, such Lender under this Agreementor participated in by any Credit Party, or (iii) with respect to shall result in the imposition on any LIBOR Loan, shall impose on such Lender Credit Party or the London interbank market of any other condition affecting this Agreement Agreement, such Credit Party’s Commitment or any LIBOR Loan made by such LenderCredit Party or Letter of Credit or participation therein (including any Tax (other than Taxes on payments under this Agreement, Indemnified Taxes and Excluded Taxes) on or with respect to the Commitments, Loans, deposits or liabilities incurred to fund Loans, assets consisting of Loans or capital attributable to the foregoing), and the result of any of the foregoing shall be to increase the cost to such Lender Credit Party of making or maintaining any LIBOR Loan or of 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 Credit Party hereunder (whether of principal, interest, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender Credit Party 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 Credit Party for such increase additional costs or reduction will be paid by the Borrowers to such LenderCredit Party upon demand. Notwithstanding the foregoing, no Credit Party shall be entitled to request compensation under this paragraph with respect to any Change in Law in respect of costs imposed on such Lender or Issuing Bank under the extent Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or Basel III if it shall not be the general policy or practice of such amounts have not been included Credit Party to seek compensation in the calculation of the LIBOR Ratesimilar circumstances under similar provisions in comparable credit facilities, upon demand as determined in good faith by such Lender (through the Administrative Agent)Credit Party.
(b) If any Lender Credit Party shall have determined in good faith that any Regulatory Change in Law regarding capital adequacy or liquidity requirements or compliance by any Lender (or its Parent or any lending office of such Lender) with any request or directive regarding capital or liquidity requirements (whether or not having the force of Law) of any Tribunal, monetary authority, central bank, or comparable agency, has or would have the effect of reducing the rate of return on such LenderCredit Party’s (capital or its Parent’s) on the capital of such Credit Party’s holding company, if any, as a consequence of its obligations hereunder this Agreement, such Credit Party’s Commitment or the Loans made or Letters of Credit issued by such Credit Party pursuant hereto to a level below that which such Lender (Credit Party or its Parent) such Credit Party’s holding company could have achieved but for such Regulatory Change, or compliance Change in Law (taking into consideration such LenderCredit Party’s policies and the policies of such Credit Party’s holding company with respect to capital and liquidity requirementsadequacy or liquidity) by an amount deemed in good faith by such Lender Credit Party to be material, 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 Credit Party for such reduction upon demand will be paid by the Borrowers to such Lender (through the Administrative Agent)Credit Party.
(c) A certificate of a Lender any Credit Party 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 Credit Party or its holding company as specified in paragraph (a) or (b) above, as the case may be, (iii) the calculation of such amount or amounts under clause (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, Company and shall be conclusive and binding absent manifest error and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower Borrowers shall pay to the Administrative Agent for the account of such Lender Credit Party the amount shown as due on any such certificate delivered by it within 15 10 days after its receipt of the same.
(d) Failure on the part of any Credit Party to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any period shall not constitute a waiver of such Credit Party’s right to demand compensation with respect to such period or any other period; provided that the Borrower Borrowers shall not be required to pay the Administrative Agent for the account of such Lender compensate any Credit Party pursuant to this Section 2.10 for any amount specified in clause (a) increased costs or (b) above in respect of a period occurring expenses incurred or reductions suffered more than 180 90 days prior to the date on which that such Lender Credit Party notifies the Borrower Company of the Change in Law giving rise to such increased costs or expenses or reductions and of such Regulatory Change and such LenderCredit Party’s intention to claim compensation therefor, except; provided further that, if the Regulatory Change in Law giving rise to any amount specified in clause (a) such increased costs or (b) above expenses or reductions is retroactive, no such time limitation then the 90-day period referred to above shall apply so long as such Lender requests compensation within 180 days from be extended to include the date on which the applicable Tribunal informed such Lender period of such Regulatory Changeretroactive effect thereof. 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) The protection of this Section 2.10 shall be available to each Lender Credit Party regardless of any possible contention of the invalidity or inapplicability of the law, regulation, or condition Change in Law which shall have occurred or been imposed.
(e) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of 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 or Notes.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding Notwith- standing any other provision herein, if after the Closing Date date of this Agreement any Regulatory Change (i) subjects shall change the basis of taxation of payments to any Lender to of the principal of or interest on any Taxes Eurodollar Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) Non-Excluded Taxes imposed on or Taxes described measured by the capital, receipts or franchises of such Lender or the overall gross or net income of such Lender by the jurisdiction in clause which such Lender has its principal office or by any political subdivision or taxing authority therein (i) or (ii) of the first sentence in Section 2.19(aany 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 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 if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable theretorequirement), (ii) shall impose, modify, or deem applicable any reserve, special deposit, or similar requirement with respect to any LIBOR Loan (or participating interest therein)Eurodollar Loan, against assets of, deposits with or for the account of, or credit extended by, such Lender under this Agreement, or (iii) with respect to any LIBOR Eurodollar Loan, shall impose on such Lender or the London interbank market any other condition affecting this Agreement or any LIBOR 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 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 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, to the extent such amounts have not been included in the calculation of the LIBOR Eurodollar Rate, upon demand by such Lender (through the Administrative 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 any Lender shall have determined in good faith that any Regulatory Change regarding capital or liquidity requirements adequacy or compliance by any Lender (or its Parent parent or any lending office of such Lender) with any request or directive regarding capital or liquidity requirements adequacy (whether or not having the force of Law) of any Tribunal, monetary authority, central bank, or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s 's (or its Parent’sparent's) capital as a consequence of its obligations hereunder to a level below that which such Lender (or its Parentparent) could have achieved but for such Regulatory Change, or compliance (taking into consideration such Lender’s 's policies with respect to capital and liquidity requirementsadequacy) by an amount deemed in good faith 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 (through the Administrative 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 (iiiii) the calculation of such amount or amounts under clause (a) or (b) abovea)(i), shall be delivered to the Borrower (with a copy to the Administrative Agent) promptly after such Lender determines it is entitled to compensation compen- sation under this Section 2.102.14, and shall be conclusive and binding absent manifest error and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower shall pay to the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 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 faith deem reasonable and may use any xxx xxx xny 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 compen- sation 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 2.10 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) In the event any Lender shall seek compensation pursuant to this Section 2.14, the Borrower may, provided no Event of Default has occurred and is continuing, 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 other 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, 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) If the Borrower is required to pay additional amounts to or for the account of 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, is not otherwise disadvantageous to such Lender.
(g) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of the Borrower under this Section 2.10 2.14 shall survive for one year after the termination of this Agreement and/or the payment or assignment of any of the Loans or Notes.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Centurytel Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the Closing Restatement Effective Date any Regulatory Change (i) subjects any Lender to any Taxes (other than (x) Non-Excluded Taxes or Taxes described in clause (i) or (ii) of the first sentence in Section 2.19(a2.20(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (ii) shall impose, modify, or deem applicable any reserve, special 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, such Lender under this Agreement, or (iii) with respect to any LIBOR Loan, shall impose on such Lender or the London interbank market any other condition affecting this Agreement or any LIBOR 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 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 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, to the extent such amounts have not been included in the calculation of the LIBOR Rate, upon demand by such Lender (through the Administrative Agent).
(b) If any Lender shall have determined in good faith that any Regulatory Change regarding capital or liquidity requirements or compliance by any Lender (or its Parent or any lending office of such Lender) with any request or directive regarding capital or liquidity requirements (whether or not having the force of Law) of any Tribunal, monetary authority, central 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 as a consequence of its obligations hereunder to a level below that which such Lender (or its Parent) could have achieved but for such Regulatory Change, or compliance (taking into consideration such Lender’s policies with respect to capital and liquidity requirements) by an amount deemed in good faith 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 (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, (iii) the calculation of such amount or amounts under clause (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 error 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 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) The protection of this Section 2.10 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) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of 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 or Notes.
Appears in 1 contract
Samples: Credit Agreement (Centurylink, Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the Closing Date date of this Agreement any Regulatory Change or change in any Law (i) subjects any Lender shall subject the Paying Agent, a Bank or an Issuing Bank to any Taxes (other than (w) Indemnified Taxes, (x) Non-Excluded Taxes or Taxes described in clause clauses (ia), (b), (c) or and (iie) of the first sentence in Section 2.19(a) or Excluded Taxes, (y) any Tax Other Taxes and (z) Other Connection Taxes imposed on gross or measured by net income, profits or revenue (including value-added or similar Taxes) (however denominated) or that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, are franchise Taxes or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial positionbranch profits Taxes) on its loans, loan principal principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (ii) shall impose, modify, or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement with respect to any LIBOR Eurodollar Loan (or participating interest therein), against assets of, deposits with or for the account of, or credit extended by, such Lender Bank under this AgreementAgreement (without duplication of any amounts paid pursuant to Section 2.8(c)), or (iii) with respect to any LIBOR Eurodollar Loan, shall impose on such Lender Bank or the London interbank market Eurodollar Interbank Market any other condition condition, cost or expense affecting this Agreement or any LIBOR Eurodollar Loan made by such LenderBank, and the result of any of the foregoing shall be to materially increase the actual cost to such Lender Bank (or such Paying Agent or Issuing Bank in the case of making (i)) of maintaining its Commitment or of making, converting to, continuing or maintaining any LIBOR Eurodollar Loan or to materially reduce the amount of any sum received or receivable by such Lender Bank (or such Paying Agent or Issuing Bank in the case of (i)) hereunder (whether of principal, interest, or otherwise) in respect thereof by an amount deemed in good faith by such Lender to be materialthereof, then the Borrower Company shall pay to the Administrative Paying Agent for the account of such Lender Bank (or such Paying Agent or Issuing Bank in the case of (i)), within ten days following delivery to the Company of the 509265-1983-14872-Active.19588122.12 certificate specified in paragraph (c) below by such Bank (or such Paying Agent or Issuing Bank in the case of (i)), such additional amount or amounts as will compensate reimburse such Lender Bank (or such Paying Agent or Issuing Bank in the case of (i)) for such increase or reduction to such Lender, Bank (or such Paying Agent or Issuing Bank in the case of (i)) to the extent such amounts have not been included in the calculation of the LIBOR Rate, upon demand by such Lender (through the Administrative Agent)reasonably allocable to this Agreement.
(b) If any Lender Bank shall have determined in good faith that any Regulatory Change regarding capital or liquidity requirements or compliance by any Lender Bank (or its Parent parent or any lending office of such LenderBank) with any request or directive issued subsequent to the Effective Date regarding capital or liquidity requirements (whether or not having the force of Law) of any Tribunal, monetary authority, central bank, or comparable agency, has or would have the effect of reducing the rate of return on such LenderBank’s (or its Parentparent’s) capital as a consequence of its obligations hereunder to a level below that which such Lender Bank (or its Parentparent) could have achieved but for such Regulatory Change, or compliance (taking into consideration such LenderBank’s policies with respect to capital and liquidity requirementsadequacy or liquidity) by an amount deemed in good faith by such Lender Bank to be material, then from time to time, the Borrower Company shall pay to the Administrative Paying Agent for the account of such Lender Bank, within ten days following delivery to the Company of the certificate specified in paragraph (d) below by such Bank, such additional amount or amounts as will compensate reimburse such Lender Bank (or its parent) for such reduction upon demand by such Lender (through the Administrative Agent)reduction.
(c) Notwithstanding anything herein to the contrary, (i) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or by United States or foreign regulatory authorities, in each case pursuant to Basel III, and (ii) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof, shall in each case be deemed to be a Regulatory Change and a change in Law, regardless of the date enacted, adopted or issued.
(d) Each Bank or the Paying Agent or each Issuing Bank shall notify the Company of any event occurring after the date hereof entitling such Bank to compensation under paragraph (a) or (b) of this Section 2.12 (together with a good faith estimate of the amounts it would be entitled to claim in respect of such event) as promptly as practicable, but in any event on or before the date which is 60 days after the related Regulatory Change, change in any Law or other event; provided that (i) if such Bank or the Paying Agent or such Issuing Bank fails to give such notice by such date, such Bank or the Paying Agent or such Issuing Bank shall, with respect to compensation payable pursuant to paragraph (a) or (b) of this Section 2.12 in respect of any costs resulting from such Regulatory Change, change in any Law or other event, only be entitled to payment under paragraph (a) or (b) of this Section 2.12 for costs incurred from and after the date of such notice and (ii) such Bank or the Paying Agent or such Issuing Bank will take such reasonable actions, if any (including the designation of a different Applicable Lending Office for the Loans of such Bank affected by such event) to avoid the need for, or reduce the amount of, such compensation so long as such actions will not, in the reasonable opinion of such Bank or the Paying Agent or such Issuing Bank, be materially disadvantageous to such Bank or the Paying Agent or such Issuing Bank, as the case may be. A certificate of a Lender Bank or the Paying Agent or such Issuing Bank setting forth in reasonable detail (i) the Regulatory Change Change, change in any Law or other event giving rise to such any costs, (ii) such amount or amounts as shall be necessary to compensate reimburse such Lender Bank or the Paying Agent or such Issuing Bank (or participating banks or other entities pursuant to Section 9.11) as specified in paragraph (a) or (b) aboveof this Section 2.12, as the case may be, and (iii) the calculation of such amount or amounts under clause (a) or (b) aboveamounts, shall be delivered to the Borrower Company (with a copy to the Administrative Paying Agent) promptly after such Lender Bank or the Paying Agent or such Issuing Bank determines it is entitled to compensation payment under this Section 2.102.12, and shall be conclusive and binding absent manifest error 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 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 Changeerror. In preparing such certificate, such Lender Bank or the Paying Agent or such Issuing Bank may 509265-1983-14872-Active.19588122.12 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.
(de) The protection of In the event any Bank shall seek payment pursuant to this Section 2.12 or the events contemplated under Section 2.10 shall be available to each Lender regardless of any possible contention of invalidity or inapplicability of the law, regulation, or condition which Section 2.13 shall have been imposedoccurred with respect to any Bank, the Company shall have the right to replace such Bank with, and add as “Banks” under this Agreement in place thereof, one or more assignees as provided in Section 2.23(b).
(ef) Without prejudice to the survival of any other obligations of the Borrower Company hereunder, the obligations of the Borrower Company under this Section 2.10 2.12 shall survive for one year after the termination of this Agreement and/or the payment or assignment of any of the Loans or Notes.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Southwest Airlines Co)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the Closing Date any Regulatory Change (i) subjects any Lender to any Taxes (other than (x) Non-Excluded Taxes the adoption, enactment or Taxes described in clause (i) or (ii) of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentationissuance of, or other reporting requirement if such Lender could legally comply and such compliance would 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 materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (iihaving the force of law) shall impose, modify, modify or deem applicable any reserve, special deposit, deposit or similar requirement with respect to any LIBOR Loan (or participating interest therein), against assets of, deposits with or for the account of, of or credit extended by, such by any Lender under this Agreement, or (iii) with respect to any LIBOR Loan, shall impose on such Lender or the London interbank market any other condition affecting this Agreement or any LIBOR Loan Eurodollar Loans, Fixed Rate Loans, Letters of Credit or Applications made by such Lender (including, without limitation, any taxes (other than (i) Taxes or Other Taxes which are otherwise covered by the payment of additional amounts or the indemnity set forth in Section 2.21(a) or (c), respectively and (ii) any imposition of, or change in the rate of, taxes imposed on, or measured by, the net income of the Lender) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto), and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan, or issuing or participating in any Letter of Credit or Application, 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 will pay to the Administrative Agent for the account of 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, to the extent such amounts have not been included in the calculation of the LIBOR Rate, upon demand by such Lender (through the Administrative Agent)suffered.
(b) If any Lender shall have determined in good faith that the adoption, enactment or issuance after the Closing Date of any Regulatory Change law, rule, regulation, agreement or guideline regarding capital adequacy or liquidity requirements liquidity, or any change after the Closing Date in any such law, rule, regulation, agreement or guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender (or its Parent or any lending office of such Lender) or any Lender’s holding company with any request or directive regarding capital adequacy or liquidity requirements (whether or not having the force of Lawlaw) of any Tribunal, monetary authority, central bank, or comparable agency, Governmental Authority has or would have the effect of reducing the rate of return on such Lender’s (capital or its Parent’s) on the capital of 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, or under or in respect of any Letter of Credit, to a level below that which such Lender (or its Parent) such Lender’s holding company could have achieved but for such Regulatory Changeapplicability, adoption, change or compliance (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital and liquidity requirementsadequacy or liquidity) by an amount deemed in good faith by such Lender to be material, 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 Lender (through the Administrative Agent)suffered.
(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 or its holding company (including the calculation thereof) as specified in paragraph (a) or (b) above, as the case may be, (iii) the calculation of such amount or amounts under clause (a) or (b) above, 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 error and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower shall pay to the Administrative Agent for the account of such Lender the amount shown as due on any such certificate delivered by it within 15 10 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 shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to pay the Administrative Agent for the account of such compensate a Lender pursuant to this Section 2.10 for any amount specified in clause (a) increased costs incurred or (b) above in respect of a period occurring reductions suffered more than 180 days three months prior to the date on which that such Lender notifies the Borrower of the change giving rise to such Regulatory Change increased costs or reductions, and of such Lender’s intention to claim compensation therefor, excepttherefor (except that, if the Regulatory Change change giving rise to any amount specified in clause (a) such increased costs or (b) above reductions is retroactive, no such time limitation then the three-month period referred to above shall apply so long as such Lender requests compensation within 180 days from be extended to include the date on which the applicable Tribunal informed such Lender period of such Regulatory Changeretroactive effect thereof). 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) The protection of this Section 2.10 shall be available to each Lender regardless of any possible contention of the invalidity or inapplicability of the law, 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 imposedaware of the event or circumstance giving rise to such demand at the time it submitted the Competitive Bid pursuant to which such Loan was made.
(e) Without prejudice Notwithstanding anything herein to the survival of contrary, (i) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any other obligations successor or similar authority) or by United States or foreign regulatory authorities, in each case pursuant to Basel III, and (ii) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof, shall in each case be deemed to be a change in law, regardless of the Borrower hereunderdate enacted, the obligations of the Borrower under this Section 2.10 shall survive for one year after the termination of this Agreement and/or the payment adopted, issued or assignment of any of the Loans or Notesimplemented.
Appears in 1 contract
Samples: Competitive Advance and Revolving Credit Agreement (Raytheon Co/)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the Closing Date date of this Agreement any Regulatory Change (i) subjects any Lender to any Taxes (other than (x) Non-Excluded Taxes in Law shall result in the imposition, modification or Taxes described in clause (i) or (ii) applicability of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (ii) shall impose, modify, or deem applicable any reserve, insurance charge, special deposit, deposit or similar requirement with respect to any LIBOR Loan (or participating interest therein), against assets of, deposits with or for the account of, of or credit extended by, such Lender under this Agreementor participated in by any Credit Party, or (iii) with respect to shall result in the imposition on any LIBOR Loan, shall impose on such Lender Credit Party or the London interbank market of any other condition affecting this Agreement Agreement, such Credit Party’s Commitment or any LIBOR Loan made by such LenderCredit Party or Letter of Credit or participation therein (including any Tax (other than (i) Indemnified Taxes, (ii) Taxes described in clauses (b) through (c) of the definition of Excluded Taxes and (iii) Connection Income Taxes) on or with respect to the Commitments, Loans, deposits or liabilities incurred to fund Loans, assets consisting of Loans (but not unrelated assets) or capital attributable to the foregoing), and the result of any of the foregoing shall be to increase the cost to such Lender Credit Party of making making, converting to, continuing or maintaining any LIBOR Loan or of 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 Credit Party hereunder (whether of principal, interest, interest or otherwise) in respect thereof by an amount deemed in good faith by such Lender Credit Party 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 Credit Party for such increase additional costs or reduction will be paid by the Borrowers to such LenderCredit Party upon demand. Notwithstanding the foregoing, no Credit Party shall be entitled to request compensation under this paragraph, (A) with respect to any Competitive Loan made by such Credit Party if the extent Change in Law giving rise to such amounts have not been included in request was applicable to such Credit Party at the calculation time of submission of the LIBOR RateCompetitive Bid pursuant to which such Competitive Loan was made or issued, upon demand or (B) with respect to any Change in Law in respect of costs imposed on such Lender or Issuing Bank under the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or Basel III if it shall not be the general policy or practice of such Credit Party to seek compensation in similar circumstances under similar provisions in comparable credit facilities, as determined in good faith by such Lender (through the Administrative Agent)Credit Party.
(b) If any Lender Credit Party shall have determined in good faith that any Regulatory Change regarding capital or liquidity requirements or compliance by any Lender (or its Parent in Law affecting such Credit Party or any lending office of such Lender) with any request Credit Party or directive such Credit Party’s holding company, if any, regarding capital adequacy or liquidity requirements (whether or not having the force of Law) of any Tribunal, monetary authority, central bank, or comparable agency, has or would have the effect of reducing the rate of return on such LenderCredit Party’s (capital or its Parent’s) on the capital of such Credit Party’s holding company, if any, as a consequence of its obligations hereunder this Agreement, such Credit Party’s Commitment or the Loans made or Letters of Credit issued by such Credit Party pursuant hereto to a level below that which such Lender (Credit Party or its Parent) such Credit Party’s holding company could have achieved but for such Regulatory Change, or compliance Change in Law (taking into consideration such LenderCredit Party’s policies and the policies of such Credit Party’s holding company with respect to capital and liquidity requirementsadequacy or liquidity) by an amount deemed in good faith by such Lender Credit Party to be material, 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 Credit Party for such reduction upon demand will be paid by the Borrowers to such Lender (through the Administrative Agent)Credit Party.
(c) A certificate of a Lender any Credit Party 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 Credit Party or its holding company as specified in paragraph (a) or (b) above, as the case may be, (iii) the calculation of such amount or amounts under clause (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, Company and shall be conclusive and binding absent manifest error and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower Borrowers shall pay to the Administrative Agent for the account of such Lender Credit Party the amount shown as due on any such certificate delivered by it within 15 10 days after its receipt of the same.
(d) Failure on the part of any Credit Party to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with respect to any period shall not constitute a waiver of such Credit Party’s right to demand compensation with respect to such period or any other period; provided that the Borrower Borrowers shall not be required to pay the Administrative Agent for the account of such Lender compensate any Credit Party pursuant to this Section 2.10 for any amount specified in clause (a) increased costs or (b) above in respect of a period occurring expenses incurred or reductions suffered more than 180 90 days prior to the date on which that such Lender Credit Party notifies the Borrower Company of the Change in Law giving rise to such increased costs or expenses or reductions and of such Regulatory Change and such LenderCredit Party’s intention to claim compensation therefor, except; provided further that, if the Regulatory Change in Law giving rise to any amount specified in clause (a) such increased costs or (b) above expenses or reductions is retroactive, no such time limitation then the 90-day period referred to above shall apply so long as such Lender requests compensation within 180 days from be extended to include the date on which the applicable Tribunal informed such Lender period of such Regulatory Changeretroactive effect thereof. 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) The protection of this Section 2.10 shall be available to each Lender Credit Party regardless of any possible contention of the invalidity or inapplicability of the law, regulation, or condition Change in Law which shall have occurred or been imposed.
(e) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of 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 or Notes.
Appears in 1 contract
Samples: Credit Facility Agreement (ITT Corp)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinherein other than Section 2.14(c) and with respect to Taxes (which shall be governed solely and exclusively by Section 2.18), if after the Closing Date date of this Agreement any Regulatory 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 (i) subjects any Lender to any Taxes (other than (x) Non-Excluded Taxes whether or Taxes described in clause (i) or (ii) not having the force of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (iilaw) shall impose, modify, modify or deem applicable any reservereserve (including pursuant to regulations issued from time to time by the Board (or any successor) for determining the maximum reserve requirement (including, without limitation, any emergency supplemental or other marginal reserve requirement) for such Lender with respect to liabilities or assets which are currently referred to as eurocurrency liabilities as set forth in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time), special deposit, deposit or similar requirement with respect to any LIBOR Loan (or participating interest therein), against assets of, deposits with or for the account of, of or credit extended by, such by any Lender under this Agreement, that makes a SOFR Loan or (iii) with respect to any LIBOR Loan, shall impose on such Lender or any market in which Lenders ordinarily raise Dollars to fund Loans of the London interbank market requested Type any other condition affecting this Agreement or any LIBOR Loan either SOFR Loans made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of funding, making or maintaining any LIBOR SOFR 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 reasonably determined by such Lender to be material, then the Borrower will pay or cause the Subsidiary Guarantor to pay to such Lender upon demand such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered; provided, that such Lender shall pay be generally seeking, or intending generally to seek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such Lender has the right under such similar credit facilities to do so) in similar circumstances.
(b) If any Lender reasonably determines that the introduction of any law regarding capital adequacy or liquidity or any change therein or in the interpretation thereof, or compliance by such Lender therewith, has the effect of reducing the rate of return on the capital of such Lender or any Parent Company of such Lender by an amount reasonably determined by such Lender or such Parent Company as a consequence of such Lender’s obligations hereunder (taking into consideration such Lender’s policies and the policies of such Parent Company with respect to capital adequacy and/or liquidity and such Lender’s desired return on capital), then from time to time upon demand of such Lender (with a copy of such demand to the Administrative Agent for Agent), the account of Borrower shall pay or cause the Subsidiary Guarantor to pay to such Lender such additional amount or amounts as will compensate such Lender or such Parent Company for such increase reduction; provided, that (x) such Lender shall be generally seeking, or reduction intending generally to such Lenderseek, comparable compensation from similarly situated borrowers under similar credit facilities (to the extent such amounts have not been included in Lender has the calculation of the LIBOR Rate, upon demand by right under such Lender (through the Administrative Agent).
(bsimilar credit facilities to do so) If any Lender shall have determined in good faith that any Regulatory Change regarding capital or liquidity requirements or compliance by any Lender (or its Parent or any lending office of such Lender) with any request or directive regarding capital or liquidity requirements (whether or not having the force of Law) of any Tribunal, monetary authority, central 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 as a consequence of its obligations hereunder to a level below that which such Lender (or its Parent) could have achieved but for such Regulatory Change, or compliance (taking into consideration such Lender’s policies with respect to such change in or in the interpretation in any law regarding capital requirements and (y) such additional amounts shall not be duplicative of any amounts to the extent otherwise paid by the Borrower, as the case may be, under any other provision of this Agreement; provided, further that, this Section 2.12 shall be deemed to 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 promulgated by an amount deemed in good faith by such Lender to be material, then from time to timethe Bank for International Settlements, the Borrower shall pay to Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority) or the Administrative Agent for United States or foreign financial regulatory authorities, regardless of the account of such Lender such additional amount date adopted, issued, promulgated or amounts as will compensate such Lender for such reduction upon demand by such Lender (through the Administrative Agent)implemented.
(c) A certificate of a each 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 or its Parent Company as specified in paragraph (a) or (b) above, as the case may be, (iii) together with a statement of reasons for such demand and showing the calculation of for such amount or amounts under clause (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 error and (iv) confirmation from error; provided, that such certificate states that such Lender that such costs are also being assessed to other is treating substantially all similarly situated borrowersborrowers in a manner that is consistent with the treatment afforded the Borrower hereunder. The Borrower shall pay or cause to the Administrative Agent for the account of such be paid to each Lender the amount shown as due on any such certificate delivered by it within 15 ten (10) 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) Except as provided in this paragraph, 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 period shall not constitute a waiver of such Lender’s right to demand compensation with respect to such period or any other period. The protection of this Section 2.10 2.12 shall be available to each Lender regardless of any possible contention of the invalidity or inapplicability of the law, rule, regulation, guideline or other change or condition which shall have occurred or been imposed.
(e) Without prejudice . No Lender shall be entitled to the survival of any other obligations of the Borrower hereunder, the obligations of the Borrower compensation under this Section 2.10 2.12 for any costs incurred or reductions suffered with respect to any date unless it shall survive have notified the Borrower that it will demand compensation for one year such costs or reductions under paragraph (c) above not more than 60 days after the termination later of (i) such date and (ii) the date on which it shall have or reasonably should have become aware of such costs or reductions; provided that if the applicable change or introduction with respect to the relevant law or regulation giving rise to such costs or reductions is retroactive, then the 60 day period referred to above shall be extended to include the period of retroactive effect thereof. In the event the Borrower shall reimburse any Lender pursuant to this Agreement and/or Section 2.12 for any cost and the payment or assignment Lender shall subsequently receive a refund in respect thereof, the Lender shall so notify the Borrower and shall pay to the Borrower the portion of any of such refund which it shall determine in good faith to be allocable to the Loans or Notescost so reimbursed.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the Closing Date date of this Agreement any Regulatory Change (i) subjects shall change the basis of taxation of payments to any Lender to of the principal of or interest on any Taxes Eurodollar Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) Non-Excluded Taxes imposed on or Taxes described measured by the capital, receipts or franchises of such Lender or the overall gross or net income of such Lender by the jurisdiction in clause which such Lender has its principal office or by any political subdivision or taxing authority therein (i) or (ii) of the first sentence in Section 2.19(aany 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 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 if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable theretorequirement), (ii) shall impose, modify, or deem applicable any reserve, special deposit, or similar requirement with respect to any LIBOR Loan (or participating interest therein)Eurodollar Loan, against assets of, deposits with or for the account of, or credit extended by, such Lender under this Agreement, or (iii) with respect to any LIBOR Eurodollar Loan, shall impose on such Lender or the London interbank market any other condition affecting this Agreement or any LIBOR 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 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 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, to the extent such amounts have not been included in the calculation of the LIBOR Eurodollar Rate, upon demand by such Lender (through the Administrative 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 any Lender shall have determined in good faith that any Regulatory Change regarding capital or liquidity requirements adequacy or compliance by any Lender (or its Parent parent or any lending office of such Lender) with any request or directive regarding capital or liquidity requirements adequacy (whether or not having the force of Law) of any Tribunal, monetary authority, central bank, or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s 's (or its Parent’sparent's) capital as a consequence of its obligations hereunder to a level below that which such Lender (or its Parentparent) could have achieved but for such Regulatory Change, or compliance (taking into consideration such Lender’s 's policies with respect to capital and liquidity requirementsadequacy) by an amount deemed in good faith 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 (through the Administrative 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 (iiiii) the calculation of such amount or amounts under clause (a) or (b) abovea)(i), 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 2.102.12, and shall be conclusive and binding absent manifest error and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower shall pay to the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 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 faith deem reasonable and may use any reasonable averaging and attribution xxxxxxxtion 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 2.10 2.12 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) In the event any Lender shall seek compensation pursuant to this Section 2.12, the Borrower may, provided no Event of Default has occurred and is continuing, 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 2.12 agrees to sell its Commitment, Loans, Notes, and interest in this Agreement and the other 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, without limitation, any compensation claimed by such Lender under this Section 2.12 and as to which such Lender has delivered the certificate required by Section 2.12(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 any Lender pursuant to this Section 2.12, 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, is not otherwise disadvantageous to such Lender.
(g) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of the Borrower under this Section 2.10 2.12 shall survive for one year after the termination of this Agreement and/or the payment or assignment of any of the Loans or Notes.
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Samples: 364 Day Revolving Credit Agreement (Centurytel Inc)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if If after the Closing Date date of this Agreement any Regulatory 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 but with respect to which similarly situated banks generally comply) (any such change, an "Increased Cost Change")
(i) subjects any Lender shall change the basis of taxation of payments to any Taxes Bank of the principal of or interest on any Eurodollar Loan made by such Bank or any other fees or amounts payable hereunder (other than (x) Non-Excluded Taxes taxes imposed on the overall net income of such Bank by the jurisdiction in which such Bank has its principal or Taxes described in clause lending office or by any political subdivision or taxing authority therein (i) or (ii) of the first sentence in Section 2.19(aany 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 tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender Bank to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligationsrequirement), 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 participating interest therein), against assets of, deposits with or for the account of, or credit extended by, such Lender under this Agreement, Bank or (iii) with respect to any LIBOR Loan, shall impose on such Lender Bank or on the London interbank market Interbank Market any other condition affecting this Agreement or any LIBOR Eurodollar 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 or to reduce the amount of any sum received or receivable by such Lender Bank hereunder (whether of principal, interest, 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 the Administrative Agent for the account of such Lender Section 2.04(d) hereof, such additional amount or amounts as will compensate such Lender Bank for such increase or reduction will be paid by the Borrower to such Lender, Bank as provided in Section 2.04(c) hereof. Any such amount determined pursuant to this Section 2.04(a) shall be computed on the extent such amounts have not been included in the calculation basis of the LIBOR Rate, upon demand net effect of any Increased Cost Changes incurred by such Lender (through Bank from time to time after the Administrative Agent)date of this Agreement.
(b) If any Lender Bank shall have determined in good faith that the adoption or issuance, after the date of this Agreement, of any Regulatory Change regarding capital or liquidity requirements or compliance by any Lender (or its Parent or any lending office of such Lender) with any applicable law, rule, regulation, guideline, request or directive regarding capital or liquidity requirements adequacy (whether or not having the force of Lawlaw but with respect to which similarly situated banks generally comply) of (a "Capital Adequacy Rule"), or any Tribunalchange therein, monetary or any change in the interpretation or administration thereof by any governmental authority, central bankbank or comparable agency charged with the interpretation or administration thereof (any such adoption, issuance or change of a Capital Adequacy Rule being called a "Capital Adequacy Change"), or comparable agencycompliance therewith by any Bank (or any lending office of such Bank), has or would have the net effect of reducing the rate of return on such Lender’s (or its Parent’s) Bank's capital as a consequence of its obligations commitment to make, or the making or maintaining of, any Loans hereunder to a level below that which such Lender (or its Parent) could Bank would have achieved but for such Regulatory Changeadoption, change or compliance (taking into consideration such Lender’s Bank's policies with respect to capital adequacy and liquidity requirementsany Capital Adequacy Rule in effect as of the date of this Agreement) by an amount deemed in good faith by such Lender Bank to be material, then from time to time, time the Borrower shall shall, subject to Section 2.04(d) hereof, 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 as provided in Section 2.04(c) hereof; provided, however, that to the extent (i) a Bank shall increase its level of capital above the level maintained by such Lender Bank on the date of this Agreement and there has not been a Capital Adequacy Change, or (through ii) there has been a Capital Adequacy Change and a Bank shall increase its level of capital by an amount greater than the Administrative Agentincrease attributable (taking into consideration the same variables taken into consideration in determining the level of capital maintained by such Bank on the date of this Agreement) to such Capital Adequacy Change, the Borrower shall not be required to pay any amount or amounts under this Agreement with respect to any such increase in capital. Thus, for example, a Bank which is "adequately capitalized" (as such term or any similar term is used by any applicable bank regulatory agency having authority with respect to such Bank) may not require the Borrower to make payments in respect of increases in such Bank's level of capital made under the circumstances described in clause (i) or (ii) above which improve its capital position from "adequately capitalized" to "well capitalized" (as such term or any similar term is used by any applicable bank regulatory agency having authority with respect to such Bank).
(c) A certificate of a Lender each Bank 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 Bank (or Participant pursuant to Section 10.06(b) hereof) as specified in paragraph (a) or (b) aboveof this Section 2.04, as the case may be, (iii) the calculation of such amount or amounts under clause (a) or (b) above, shall be delivered to the Borrower at the end of each Calendar Quarter during which such Bank is an Affected Bank and upon the taking by the Borrower in respect of such Bank of one of the actions described in paragraph (with a copy to the Administrative Agente)(i) promptly after such Lender determines it is entitled to compensation under or (e)(iii) of this Section 2.102.04 and shall, if submitted in good faith, be conclusive absent manifest error; provided that any certificate delivered by a Bank pursuant to this Section 2.04(c) shall (i) in the case of a certificate in respect of amounts payable pursuant to paragraph (a) of this Section 2.04, set forth in reasonable detail the basis for and the calculation of such amounts, and shall be conclusive and binding absent manifest error and (ivii) confirmation from in the case of a certificate in respect of amounts payable pursuant to paragraph (b) of this Section 2.04, (A) set forth at least the same amount of detail in respect of the calculation of such Lender that amount as such costs are also being assessed Bank provides in similar circumstances to other similarly situated borrowersborrowers from such Bank, and (B) include a statement by such Bank that it has allocated to its Commitment or outstanding Loans a proportionately equal amount of any reduction of the rate of return on such Bank's capital due to a Capital Adequacy Rule as it has allocated to each of its other commitments to lend or to each of its other outstanding loans that are affected similarly by such Capital Adequacy Rule. The Borrower shall pay to the Administrative Agent for the account of such Lender each Bank the amount shown as due on any such certificate within 15 upon the earlier of (i) the date on which the Borrower takes one of the actions in respect of any such Bank described in paragraph (e)(i) or (e)(iii) of this Section 2.04 and (ii) 30 days after its receipt of the same; provided that by the Borrower shall not be required to pay the Administrative Agent for the account of such Lender certificate.
(d) Subject to the following provisions of this Section 2.04(d), failure on the part of any Bank to demand compensation for any amounts payable pursuant to this Section 2.10 for any amount specified in clause paragraphs (a) or (b) above in of this Section 2.04 with respect to any Interest Period shall not constitute a waiver of such Bank's rights to demand compensation for any such amounts with respect to any other Interest Period. In the case of any Increased Cost Change which is given retroactive effect to a period occurring more than 180 days date prior to the date on which such Lender notifies the Borrower of such Regulatory Change and such Lender’s intention adoption thereof, a Bank shall be entitled to claim seek compensation therefor, except, if the Regulatory Change giving rise in respect thereof pursuant to any amount specified in clause paragraph (a) or (b) above is retroactive, no of this Section 2.04 for the period commencing on such time limitation shall apply so long as such Lender requests compensation within 180 days from retroactive effective date and ending on the date on which the applicable Tribunal informed such Lender Borrower takes one of the actions in respect of such Regulatory Change. In preparing such certificate, such Lender may employ such assumptions and allocations of costs and expenses as it shall Bank described in good xxxxx xxxx reasonable and may use any reasonable averaging and attribution method.
paragraph (de)(i) The protection or (e)(iii) of this Section 2.10 2.04; provided, however, that (i) if such Bank shall fail to notify the Borrower within 30 days after the date of official promulgation of such Increased Cost Change that it will demand such compensation, the period for which such Bank shall be available entitled to each Lender regardless of any possible contention of invalidity or inapplicability of seek compensation in respect thereof shall commence on the law, regulation, or condition date which shall have been imposed.
(e) Without prejudice is 30 days prior to the survival of any other obligations of the Borrower hereunder, the obligations of 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 or Notes.such Bank's notice that it will demand compensation,
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding If any other provision herein, if Bank shall have determined that the adoption after the Closing Date date hereof of any Regulatory Change (i) subjects law, rule, regulation or guideline regarding capital adequacy, or any Lender to change after the date hereof in any Taxes (other than (x) Non-Excluded Taxes or Taxes described in clause (i) or (ii) of the first sentence foregoing or in Section 2.19(a) the interpretation or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (ii) shall impose, modify, or deem applicable any reserve, special deposit, or similar requirement with respect to any LIBOR Loan (or participating interest therein), against assets of, deposits with or for the account of, or credit extended by, such Lender under this Agreement, or (iii) with respect to any LIBOR Loan, shall impose on such Lender or the London interbank market any other condition affecting this Agreement or any LIBOR Loan made by such Lender, and the result administration of any of the foregoing shall be to increase by any Governmental Authority, central bank or comparable agency charged with the cost to such Lender of making interpretation or maintaining any LIBOR Loan or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principaladministration thereof, 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, to the extent such amounts have not been included in the calculation of the LIBOR Rate, upon demand by such Lender (through the Administrative Agent).
(b) If any Lender shall have determined in good faith that any Regulatory Change regarding capital or liquidity requirements or compliance by any Lender Bank (or its Parent any Lending Office of such Bank) or any lending office of such Lender) Bank's holding company with any request or directive promulgated after the date hereof regarding capital or liquidity requirements adequacy (whether or not having the force of Lawlaw) of any Tribunal, monetary authoritysuch Governmental Authority, central bank, bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s (Bank's or its Parent’s) on the capital of such Bank's holding company, if any, as a consequence of its obligations hereunder this Agreement, the issuance of a Letter of Credit or the Revolving Loan made by such Bank to a level below that which such Lender (Bank or its Parent) such Bank's holding company could have achieved but for such Regulatory Changeadoption, change or compliance (taking into consideration such Lender’s Bank's policies and the policies of such Bank's holding company with respect to capital and liquidity requirementsadequacy) by an amount deemed by such Bank in good faith by such Lender to be material, then from time to time, time the Borrower shall pay to the Administrative Agent for the account of such Lender Bank such additional amount or amounts as will compensate such Lender Bank or such Bank's holding company for any such reduction upon demand by suffered, except that Borrower shall not be obligated to compensate any Bank for any costs associated with an increase in its administrative burden resulting from any such Lender (through the Administrative Agent)adoption, change or compliance.
(c) A certificate of a Lender Bank 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 Bank or its holding company as specified in paragraph (a) or (b) above, as the case may be, (iii) and setting forth in reasonable detail the calculation of manner in which such amount or amounts under clause (a) or (b) above, shall have been determined 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 and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowersmade on a reasonable basis. The Borrower shall pay to the Administrative Agent for the account of such Lender each Bank the amount shown as due on any such certificate delivered by it within 15 10 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 Bank to demand compensation for any increased costs or reduction in amounts received or receivable with respect to any period shall not constitute a waiver of said Bank's right to demand compensation with respect to such period or any other period. The protection of this Section 2.10 shall be available to each Lender any Bank regardless of any possible contention of the invalidity or inapplicability of the law, rule, regulation, guideline or other change or condition which shall have occurred or been imposed, provided that if such Bank 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 such Bank shall return to Borrower the respective compensation paid by Borrower, up to the lesser of such amount as is received by such Bank or such amount as was paid by Borrower.
(e) Without prejudice to the survival of any other obligations of the Borrower hereunderagreement contained herein, the agreements and obligations of contained in this Section shall survive Termination, provided that Borrower shall have no further obligation to the Borrower Banks under this Section 2.10 unless a certificate setting forth the amount of such obligation shall survive for one year have been delivered by the Banks pursuant to paragraph (c) above within ninety (90) calendar days after the termination Termination Date.
(f) Each Bank or the Administrative Agent on behalf of the Banks shall give notification to the Borrower of any event or prospective event which will give rise to the operation of paragraphs (a) or (b) of this Agreement and/or Section, such notification to be sent within thirty (30) days of the payment or assignment date of the public promulgation of the effective date of any such law, rule, regulation, guidelines or change therein.
(g) Notwithstanding any other provisions herein to the contrary, if after receipt of any notice from a Bank that the Loans Borrower is obligated to pay additional amounts to the Bank pursuant to any change arising under Section 2.13(a) or Notes.(b), Borrower shall have the option to prepay or convert any Borrowing adversely affected by any change described in Paragraph (a) or (b) of this section within seven (7) days of receipt of any such notice from a Bank, without the obligation to pay to such Bank with respect to such prepayment or conversion any amount or amounts otherwise payable to such Bank by Borrower pursuant to this Section 2.13
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the Closing Date any Regulatory Change in Law affecting any Lender or Issuing Bank or any lending office of such Lender’s or Issuing Bank’s holding company, if any, shall (i) subjects impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge 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 Reserve Adjusted Eurodollar Rate), (ii) subject the Administrative Agent, any Lender or any Issuing Bank to any Taxes (other than (x) Non-Excluded Taxes in connection with this Agreement or Taxes described in clause (i) any Loan, Letter of Credit or (ii) of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, Commitment made hereunder or its deposits, reserves, other liabilities or capital attributable thereto, or change the basis of taxation payments in respect thereof (iiexcept, in each case, (A) shall imposefor Indemnified Taxes or Other Taxes indemnified pursuant to Section 2.20, modify, or deem applicable any reserve, special deposit, or similar requirement with respect to any LIBOR Loan (or participating interest therein), against assets of, deposits with or for B) Taxes described in clauses (b) through (d) of the account of, or credit extended by, such Lender under this Agreement, definition of Excluded Taxes and (C) Connection Income Taxes) or (iii) with respect to any LIBOR Loan, shall impose on such Lender or such Issuing Bank or the London interbank market any other condition affecting this Agreement or any LIBOR 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 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, 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 the Administrative Agent for the account of 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, to the extent such amounts have not been included in the calculation of the LIBOR Rate, upon demand by such Lender (through the Administrative Agent)suffered.
(b) If any Lender or any Issuing Bank shall have determined in good faith that any Regulatory Change in Law regarding any capital or liquidity requirements or compliance by any Lender (or its Parent or any lending office of such Lender) with any request or directive regarding capital or liquidity requirements (whether or not having the force of Law) of any Tribunal, monetary authority, central bank, or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s (or its Parent’s) such Issuing Bank’s capital or on the capital of 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 Parent) such Issuing Bank or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Regulatory Change, or compliance Change in Law (taking into consideration such Lender’s or such Issuing Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding company with respect to capital and liquidity requirements) by an amount deemed in good faith by such Lender to be materialadequacy), 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 Lender (through the Administrative Agent)suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth in reasonable detail (i) the Regulatory Change or other event giving rise to such costs, (ii) such 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, (iii) the calculation of such amount or amounts under clause (a) or (b) above, above shall be delivered to the Administrative 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 and (iv) confirmation from error. The Borrowers shall pay such Lender that or 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 Issuing Bank the amount shown as due on any such certificate delivered by it within 15 10 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 shall not constitute a waiver of such Lender’s or such Issuing Bank’s right to demand such compensation; provided that the Borrower Borrowers shall not be required under any obligation to pay the Administrative Agent for the account of such compensate any Lender pursuant to this Section 2.10 for or any amount specified in clause Issuing Bank under paragraph (a) or (b) above in with respect of a period occurring to increased costs incurred or reductions suffered more than 180 days prior to the date on which such Lender or such Issuing Bank, as applicable, notifies the Administrative Borrower of the Change in Law giving rise to such Regulatory Change increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor, except, if ; provided further that the Regulatory Change giving rise foregoing limitation shall not apply to any amount specified in clause (a) increased costs or (b) above is retroactive, no such time limitation shall apply so long as such Lender requests compensation within 180 days from reductions arising out of 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) The protection of this Section 2.10 shall be available to each Lender regardless 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) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of 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 or Notes.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision hereinof this Agreement, if after the Closing Date any Regulatory Change (i) subjects any Lender to any Taxes (other than (x) Non-Excluded Taxes date of this Agreement the adoption, enactment or Taxes described in clause (i) or (ii) of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentationissuance of, or other reporting requirement if such Lender could legally comply and such compliance would 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 materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (iihaving the force of law) shall impose, modify, modify or deem applicable any reserve, special deposit, deposit or similar requirement with respect to any LIBOR Loan (or participating interest therein), against assets of, deposits with or for the account of, of or credit extended by, such by any Lender under this Agreement, or (iii) with respect to any LIBOR Loan, shall impose on such Lender or the London interbank market any other condition affecting this Agreement or any LIBOR Loan Eurodollar Loans, Fixed Rate Loans, Letters of Credit or Applications made by such Lender (including, without limitation, any taxes (other than (i) Taxes or Other Taxes which are otherwise covered by the payment of additional amounts or the indemnity set forth in Section 2.21(a) or (c), respectively and (ii) any imposition of, or change in the rate of, taxes imposed on, or measured by, the net income of the Lender) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto), and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan, or issuing or participating in any Letter of Credit or Application, 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 will pay to the Administrative Agent for the account of 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, to the extent such amounts have not been included in the calculation of the LIBOR Rate, upon demand by such Lender (through the Administrative Agent)suffered.
(b) If any Lender shall have determined in good faith that the adoption, enactment or issuance after the date hereof of any Regulatory Change law, rule, regulation, agreement or guideline regarding capital adequacy or liquidity requirements liquidity, or any change after the date hereof in any such law, rule, regulation, agreement or guideline (whether such law, rule, regulation, agreement or guideline has been adopted) or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender (or its Parent or any lending office of such Lender) or any Lender’s holding company with any request or directive regarding capital adequacy or liquidity requirements (whether or not having the force of Lawlaw) of any Tribunal, monetary authority, central bank, or comparable agency, Governmental Authority has or would have the effect of reducing the rate of return on such Lender’s (capital or its Parent’s) on the capital of 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, or under or in respect of any Letter of Credit, to a level below that which such Lender (or its Parent) such Lender’s holding company could have achieved but for such Regulatory Changeapplicability, adoption, change or compliance (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital and liquidity requirementsadequacy or liquidity) by an amount deemed in good faith by such Lender to be material, 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 Lender (through the Administrative Agent)suffered.
(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 or its holding company (including the calculation thereof) as specified in paragraph (a) or (b) above, as the case may be, (iii) the calculation of such amount or amounts under clause (a) or (b) above, 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 error and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower shall pay to the Administrative Agent for the account of such Lender the amount shown as due on any such certificate delivered by it within 15 10 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 shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to pay the Administrative Agent for the account of such compensate a Lender pursuant to this Section 2.10 for any amount specified in clause (a) increased costs incurred or (b) above in respect of a period occurring reductions suffered more than 180 days three months prior to the date on which that such Lender notifies the Borrower of the change giving rise to such Regulatory Change increased costs or reductions, and of such Lender’s intention to claim compensation therefor, excepttherefor (except that, if the Regulatory Change change giving rise to any amount specified in clause (a) such increased costs or (b) above reductions is retroactive, no such time limitation then the three-month period referred to above shall apply so long as such Lender requests compensation within 180 days from be extended to include the date on which the applicable Tribunal informed such Lender period of such Regulatory Changeretroactive effect thereof). 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) The protection of this Section 2.10 shall be available to each Lender regardless of any possible contention of the invalidity or inapplicability of the law, 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 imposedaware of the event or circumstance giving rise to such demand at the time it submitted the Competitive Bid pursuant to which such Loan was made.
(e) Without prejudice Notwithstanding anything herein to the survival of contrary, (i) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any other obligations successor or similar authority) or by United States or foreign regulatory authorities, in each case pursuant to Basel III, and (ii) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof, shall in each case be deemed to be a change in law, regardless of the Borrower hereunderdate enacted, the obligations of the Borrower under this Section 2.10 shall survive for one year after the termination of this Agreement and/or the payment adopted, issued or assignment of any of the Loans or Notesimplemented.
Appears in 1 contract
Samples: Five Year Competitive Advance and Revolving Credit Agreement (Raytheon Co/)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof applicable to any Lender, or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other provision hereinGovernmental Authority, if after in each case made subsequent to the Closing Date any Regulatory Change (or, if later, the date on which such Lender becomes a Lender):
(i) subjects any Lender to any Taxes (other than (x) Non-Excluded Taxes or Taxes described in clause (i) or (ii) of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (ii) shall impose, modify, modify or deem hold applicable any reserve, special deposit, compulsory loan or similar requirement with respect to any LIBOR Loan (or participating interest therein), 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 office of such Lender under this Agreement, or which is not otherwise included in the determination of the LIBO Rate hereunder (iiiexcluding any Tax of any kind whatsoever); or
(ii) with respect to any LIBOR Loan, shall impose on such Lender or the London interbank market any other condition affecting this Agreement or (excluding any LIBOR 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 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 amounts necessary to the Administrative Agent for the account of such Lender such additional amount or amounts as will 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 pursuant to this Section 2.14(a) and such amounts, if any, as may be required pursuant to Section 2.05(b) and Section 10.05(b). 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 extent such amounts have not been included in the calculation of the LIBOR RateBorrower, upon demand by such Lender (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. 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 any Lender shall have determined that the adoption of or any change in good faith that any Regulatory Change Requirement of Law regarding capital adequacy or liquidity requirements or in the interpretation or application thereof or compliance by any such Lender (or its Parent or any lending office of corporation controlling such Lender) Lender with any request or directive regarding capital adequacy or liquidity requirements (whether or not having the force of Lawlaw) of from any TribunalGovernmental Authority, monetary authorityin each case, central bankmade subsequent to the Closing Date, does or comparable agency, has or would shall have the effect of reducing the rate of return on such Lender’s (or its Parent’s) such corporation’s capital as a consequence of its such Lender’s obligations hereunder to a level below that which such Lender (or its Parent) such corporation could have achieved but for such Regulatory Change, change or compliance (taking into consideration such Lender’s or such corporation’s policies with respect to capital and liquidity requirementsadequacy or liquidity) by an amount deemed in good faith by such Lender or Issuing Bank to be material, 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 reduction. Such a certificate as to any additional amounts payable pursuant to this Section 2.14(b) submitted by such Lender (Lender, 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, (iii) the calculation of such amount or amounts under clause (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 in the absence of manifest error and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower shall pay Notwithstanding anything to the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 15 days after its receipt of the same; provided that contrary in this Section 2.14(b), the Borrower shall not be required to pay the Administrative Agent for the account of such compensate a Lender pursuant to this Section 2.10 2.14(b) for any amount specified in clause (a) or (b) above in respect of a period occurring amounts incurred more than 180 days six months prior to the date on which that such Lender notifies the Borrower of such Regulatory Change and 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, except, if the Regulatory Change giving rise six-month period first referred 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) The protection of this Section 2.10 sentence shall be available extended to each Lender regardless include the period of any possible contention of invalidity or inapplicability of the law, regulation, or condition which shall have been imposed.
(e) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of the Borrower under this Section 2.10 retroactive effect thereof). This covenant shall survive for one year after the termination of this Agreement and/or and the payment or assignment of any of the Loans and all other amounts payable hereunder.
(c) Notwithstanding anything herein to the contrary, (i) the Xxxx Xxxxx Wall Street Reform and Consumer Protection Act, and all requests, rules, regulations, guidelines and directives promulgated thereunder or Notesissued in connection therewith, and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, in each case, shall be deemed to have been enacted, adopted, promulgated or issued, as applicable, subsequent to the Closing Date for all purposes herein.
Appears in 1 contract
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 (i) after the Closing Date any Regulatory 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 (i) subjects any Lender to any Taxes (other than (x) Non-Excluded Taxes whether or Taxes described in clause (i) or (ii) not having the force of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable theretolaw), (ii) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or the compliance with any requests, rules, guidelines or directives thereunder or issued in connection therewith, regardless of the date enacted, adopted or issued or (iii) the compliance with any requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued (x) shall impose, modify, modify or deem applicable any reserve, special deposit, deposit or similar requirement with respect to any LIBOR Loan (or participating interest therein), against assets of, deposits with or for the account of, or credit extended by, such Lender under this Agreementany Lender, or (iiiy) with respect to any LIBOR Loan, shall impose on such any Lender or the London interbank Interbank market any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate Competitive Loan made by such LenderLender or (z) shall subject any Lender to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any LIBOR Loan made by it, or change the basis of taxation of payments to such Lender in respect thereof, and the result of any of the foregoing shall be to increase the cost (other than, except as provided in clause (z), 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, 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 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, to the extent such amounts have not been included in the calculation of the LIBOR Rate, upon demand by such Lender (through the Administrative Agent).
(b) If Except with respect to Indemnified Taxes and Other Taxes, which shall be governed solely and exclusively by Section 2.23, if (i) after the Closing Date, any Lender shall have determined in good faith that the adoption after the Closing Date of any Regulatory Change applicable law, rule, regulation or guideline regarding capital adequacy, or liquidity requirements 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 its Parent or any lending office Lending Office of such Lender) with any request or directive regarding capital or liquidity requirements adequacy (whether or not having the force of Lawlaw) of any Tribunal, monetary authoritysuch Governmental Authority, central bank, bank or comparable agency, (ii) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or the compliance with any requests, rules, guidelines or directives thereunder or issued in connection therewith, regardless of the date enacted, adopted or issued or (iii) the compliance with any requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, has or would have the effect of reducing the rate of return on such Lender’s (capital or its Parent’s) 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 Parentholding company) could have achieved but for such Regulatory Change, or compliance the items referenced in clauses (i)-(iii) of this sentence (taking into consideration such Lender’s policies or the policies of its holding company, as the case may be, with respect to capital and liquidity requirementsadequacy) 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 Lender (through the Administrative Agent)Lender.
(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 under referred to in the preceding clause (a) or (b) abovei), shall be delivered to the Borrower (with a copy to or the Administrative Agent) promptly after such Lender determines it is entitled to compensation under this Section 2.10, relevant Subsidiary Borrower and shall be conclusive and binding absent manifest error and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower or the relevant Subsidiary Borrower shall pay to the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 15 days 10 Business 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 2.10 2.17 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) Without prejudice 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 2.17, Section 2.18, Section 2.23 or Section 2.26 or (ii) would require the Borrower or any Subsidiary Borrower to pay an increased amount under this Section 2.17, Section 2.18, Section 2.23 or Section 2.26, it will notify the Borrower and such Subsidiary Borrower of such event or condition and, to the survival 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 2.17, Section 2.18, Section 2.23 or Section 2.26 would be materially reduced or the Taxes payable under Section 2.23, or other obligations amounts otherwise payable under this Section 2.17, Section 2.18 or Section 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 Borrower hereunderavoidance 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 2.18, or if the Borrower or such Subsidiary Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16 or Section 2.23, the Borrower may (but subject in any such case to the payments required by Section 2.18), upon at least five Business Days’ prior written or telecopier notice to such Lender and the Administrative Agent, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Revolving Commitment, the amount of outstanding Loans, any participations in Letters of Credit from the Lender providing such notice and such Lender shall thereupon assign its Revolving Commitment, any Loans owing to such Lender and any participations in Letters of Credit to such replacement lending institution pursuant to Section 10.3. 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 2.10 shall survive Section) owing hereunder to such Lender as at such effective date for one year after the termination of this Agreement and/or the payment or assignment of any of the Loans or Notessuch assignment.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof applicable to any Lender, or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other provision hereinGovernmental Authority, in each case made subsequent to the Restatement Date (or, if after later, the Closing Date any Regulatory Change date on which such Lender becomes a Lender):
(i) subjects any Lender to any Taxes (other than (x) Non-Excluded Taxes or Taxes described in clause (i) or (ii) of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (ii) shall impose, modify, modify or deem hold applicable any reserve, special deposit, compulsory loan or similar requirement with respect to any LIBOR Loan (or participating interest therein), 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 office of such Lender under this Agreement, or which is not otherwise included in the determination of the LIBO Rate hereunder (iiiexcluding any Tax of any kind whatsoever); or
(ii) with respect to any LIBOR Loan, shall impose on such Lender or the London interbank market any other condition affecting this Agreement or (excluding any LIBOR 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 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 amounts necessary to the Administrative Agent for the account of such Lender such additional amount or amounts as will 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 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 extent such amounts have not been included in the calculation of the LIBOR RateBorrower, upon demand by such Lender (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 Xxxxxx and a reasonably detailed explanation of the calculation thereof. 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 Xxxxxx’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 1003651351v23 or application, have notified the Borrower of such Xxxxxx’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 any Lender shall have determined that the adoption of or any change in good faith that any Regulatory Change Requirement of Law regarding capital adequacy or liquidity requirements or in the interpretation or application thereof or compliance by any such Lender (or its Parent or any lending office of corporation controlling such Lender) Lender with any request or directive regarding capital adequacy or liquidity requirements (whether or not having the force of Lawlaw) of from any TribunalGovernmental Authority, monetary authorityin each case, central bankmade subsequent to the Restatement Date, does or comparable agency, has or would shall have the effect of reducing the rate of return on such Lender’s (or its Parent’s) such corporation’s capital as a consequence of its such Xxxxxx’s obligations hereunder to a level below that which such Lender (or its Parent) such corporation could have achieved but for such Regulatory Change, change or compliance (taking into consideration such Lender’s or such corporation’s policies with respect to capital and liquidity requirementsadequacy or liquidity) by an amount deemed in good faith by such Lender or Issuing Bank to be material, 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 reduction. Such a certificate as to any additional amounts payable pursuant to this Section 2.14(b) submitted by such Lender (Lender, 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, (iii) the calculation of such amount or amounts under clause (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 in the absence of manifest error and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower shall pay Notwithstanding anything to the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 15 days after its receipt of the same; provided that contrary in this Section 2.14(b), the Borrower shall not be required to pay the Administrative Agent for the account of such compensate a Lender pursuant to this Section 2.10 2.14(b) for any amount specified in clause (a) or (b) above in respect of a period occurring amounts incurred more than 180 days six months prior to the date on which that such Lender notifies the Borrower of such Regulatory Change and Xxxxxx’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 Lenderincreased 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 Xxxxxx’s intention to claim compensation therefor, except, if the Regulatory Change giving rise six-month period first referred 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) The protection of this Section 2.10 sentence shall be available extended to each Lender regardless include the period of any possible contention of invalidity or inapplicability of the law, regulation, or condition which shall have been imposed.
(e) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of the Borrower under this Section 2.10 retroactive effect thereof). This covenant shall survive for one year after the termination of this Agreement and/or and the payment or assignment of any of the Loans and all other amounts payable hereunder.
(c) Notwithstanding anything herein to the contrary, (i) the Xxxx Xxxxx Wall Street Reform and Consumer Protection Act, and all requests, rules, regulations, guidelines and directives promulgated thereunder or Notesissued in connection therewith, and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, in each case, shall be deemed to have been enacted, adopted, promulgated or issued, as applicable, subsequent to the Restatement Date for all purposes herein.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the Closing Date date of this Agreement any Regulatory Change (i) subjects shall change the basis of taxation of payments to any Lender to of the principal of or interest on any Taxes Eurodollar Loan made by such Lender or any other fees or amounts payable hereunder (other than (x) Non-Excluded Taxes imposed on or Taxes described measured by the capital, receipts or franchises of such Lender or the overall gross or net income of such Lender by the jurisdiction in clause which such Lender has its principal office or by any political subdivision or taxing authority therein (i) or (ii) of the first sentence in Section 2.19(aany 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 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 if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable theretorequirement), (ii) shall impose, modify, or deem applicable any reserve, special deposit, or similar requirement with respect to any LIBOR Loan (or participating interest therein)Eurodollar Loan, against assets of, deposits with or for the account of, or credit extended by, such Lender under this Agreement, or (iii) with respect to any LIBOR Eurodollar Loan, shall impose on such Lender or the London interbank market any other condition affecting this Agreement or any LIBOR 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 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 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, to the extent such amounts have not been included in the calculation of the LIBOR Eurodollar Rate, upon demand by such Lender (through the Administrative Agent).
(b) If any Lender shall have determined in good faith that any Regulatory Change regarding capital or liquidity requirements adequacy or compliance by any Lender (or its Parent parent or any lending office of such Lender) with any request or directive regarding capital or liquidity requirements adequacy (whether or not having the force of Law) of any Tribunal, monetary authority, central bank, or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s 's (or its Parent’sparent's) capital as a consequence of its obligations hereunder to a level below that which such Lender (or its Parentparent) could have achieved but for such Regulatory Change, or compliance (taking into consideration such Lender’s 's policies with respect to capital and liquidity requirementsadequacy) by an amount deemed in good faith 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 (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 under clause (a) or (b) abovea)(i), 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 and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower shall pay to the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 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 faith deem reasonable and may use any reasonable averaging and attribution axx xxxxxxxtion 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 2.10 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) In the event any Lender shall seek compensation pursuant to this Section 2.10, the Borrower may, provided no Event of Default has occurred and is continuing, 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 other 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, 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 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 judgment of such Lender, is not otherwise disadvantageous to such Lender.
(g) Without prejudice to the survival of any other obligations of the Borrower hereunder, the obligations of 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 or Notes.
Appears in 1 contract
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, or Excluded Taxes if (i) after the Closing Date any Regulatory 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 (i) subjects any Lender to any Taxes (other than (x) Non-Excluded Taxes whether or Taxes described in clause (i) or (ii) not having the force of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable theretolaw), (ii) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or the compliance with any requests, rules, guidelines or directives thereunder or issued in connection therewith, regardless of the date enacted, adopted or issued or (iii) the compliance with any requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued (x) shall impose, modify, modify or deem applicable any reserve, special deposit, deposit or similar requirement with respect to any LIBOR Loan (or participating interest therein), against assets of, deposits with or for the account of, or credit extended or participated in by, such Lender under this Agreementany Lender, or (iiiy) with respect to any LIBOR Loan, shall impose on such any Lender or the London interbank market for Dollars any other condition condition, cost or expense affecting this Agreement or any LIBOR Loan made by such LenderLender or (z) shall subject any Lender to any tax of any kind whatsoever with respect to this Agreement or any LIBOR Loan made by it, or change the basis of taxation of payments to such Lender in respect thereof, and the result of any of the foregoing shall be to increase the cost (other than, except as provided in clause (z), the amount of Taxes, if any) to such Lender of making making, converting to, continuing or maintaining any LIBOR Loan (or of maintaining its obligation to make any such 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, 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, to the extent such amounts have not been included in the calculation of the LIBOR Rate, upon demand by such Lender (through the Administrative Agent).
(b) If Except with respect to Indemnified Taxes and Other Taxes, which shall be governed solely and exclusively by Section 2.23, or Excluded Taxes if (i) after the Closing Date, any Lender shall have determined in good faith that the adoption after the Closing Date of any Regulatory Change applicable law, rule, regulation or guideline regarding capital adequacy or liquidity requirements requirements, 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 its Parent or any lending office Lending Office of such Lender or such Lender’s holding company, if any) with any request or directive regarding capital adequacy or liquidity requirements (whether or not having the force of Lawlaw) of any Tribunal, monetary authoritysuch Governmental Authority, central bank, bank or comparable agency, (ii) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or the compliance with any requests, rules, guidelines or directives thereunder or issued in connection therewith, regardless of the date enacted, adopted or issued or (iii) the compliance with any requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, has or would have the effect of reducing the rate of return on such Lender’s (capital or its Parent’s) on the capital of such Lender’s holding company, if any, as a consequence of its obligations hereunder to a level below that which such Lender (or its Parentsuch Lender’s holding company) could have achieved but for such Regulatory Change, or compliance the items referenced in clauses (i)-(iii) of this sentence (taking into consideration such Lender’s policies or the policies of such Lender’s holding company, as the case may be, with respect to capital adequacy and liquidity requirementsliquidity) 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 Lender (through the Administrative Agent)Lender.
(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 under referred to in the preceding clause (a) or (b) abovei), 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 and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower shall pay to the Administrative Agent for the account of such Lender Lender, the amount shown as due on any such certificate within 15 days 10 Business 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 2.10 2.17 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) Without prejudice Each Lender may make any Loan to the survival Borrower through any Lending Office, provided that the exercise of any other obligations this option shall not affect the obligation of the Borrower hereunderto repay the Loan in accordance with the terms of this Agreement. 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 2.17, Section 2.18 or Section 2.23 or (ii) would require the Borrower to pay an increased amount under this Section 2.17, Section 2.18 or Section 2.23, it will 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 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 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 pursuant to this Section 2.17, Section 2.18 or Section 2.23 would be materially reduced or the Taxes payable under Section 2.23, or other amounts otherwise payable under this Section 2.17 or Section 2.18 would be materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans through such other Lending Office would not otherwise materially adversely affect such Loans or such Lender. For the avoidance of doubt, nothing in this Section shall affect or postpone any of the obligations of the Borrower or the rights of any Lender pursuant to Section 2.23. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(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 2.18, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16 or Section 2.23, the Borrower may (but subject in any such case to the payments required by Section 2.18), upon at least five Business Days’ prior written notice to such Lender and the Administrative Agent, identify to the Administrative Agent a lending institution reasonably acceptable to the Administrative Agent which will purchase the Revolving Commitment and the amount of outstanding Loans from the Lender providing such notice and such Lender shall thereupon assign its Revolving Commitment and any Loans owing to such Lender to such replacement lending institution pursuant to Section 10.3. Such notice shall specify an effective date for such assignment and at the time thereof, the Borrower shall pay all accrued interest, accrued Facility Fees and all other amounts (including without limitation all amounts payable under this Section 2.10 shall survive Section) owing hereunder to such Lender as at such effective date for one year after the termination of this Agreement and/or the payment or assignment of any of the Loans or Notessuch assignment.
Appears in 1 contract
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the Closing Date date of this Agreement any Regulatory Change (i) subjects any Lender shall change the basis of taxation of payments to any Taxes Bank of the principal of or interest on any Eurodollar Loan or Fixed Rate Loan made by such Bank or any other fees or amounts payable hereunder (other than (x) Non-Excluded Taxes imposed on or Taxes described measured by the capital, receipts or franchises of such Bank or the overall gross or net income of such Bank by the jurisdiction in clause which such Bank has its principal office or by any political subdivision or taxing authority therein (i) or (ii) of the first sentence in Section 2.19(aany 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 Tax, assessment, or other governmental charge that would not have been imposed but for the failure of any Lender Bank to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal or other obligations, or its deposits, reserves, other liabilities or capital attributable theretorequirement), (ii) shall impose, modify, or deem applicable any reserve, special deposit, or similar requirement with respect to any LIBOR Eurodollar Loan (or participating interest therein), against assets of, deposits with or for the account of, or credit extended by, such Lender Bank under this AgreementAgreement (without duplication of any amounts paid pursuant to Section 2.9(d)), or (iii) with respect to any LIBOR Eurodollar Loan, shall impose on such Lender Bank or the London interbank market Eurodollar Interbank Market any other condition affecting this Agreement or any LIBOR Eurodollar Loan made by such LenderBank, and the result of any of the foregoing shall be to materially increase the actual cost to such Lender Bank of maintaining its Commitment or of making or maintaining any LIBOR Eurodollar Loan or Fixed Rate Loan or to materially 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 to be materialthereof, then the Borrower Company shall pay to the Administrative Agent for the account of such Lender Bank, within ten days following delivery to the Company of the certificate specified in paragraph (c) below by such Bank, such additional amount or amounts as will compensate reimburse such Lender Bank for such increase or reduction to such Lender, Bank to the extent such amounts have not been included in the calculation of the LIBOR Rate, upon demand by such Lender (through the Administrative Agent)reasonably allocable to this Agreement.
(b) If any Lender Bank shall have determined in good faith that any Regulatory Change regarding capital or liquidity requirements adequacy or compliance by any Lender Bank (or its Parent parent or any lending office of such LenderBank) with any request or directive issued subsequent to the Effective Date regarding capital or liquidity requirements adequacy (whether or not having the force of Law) of any Tribunal, monetary authority, central bank, or comparable agency, has or would have the effect of reducing the rate of return on such LenderBank’s (or its Parentparent’s) capital as a consequence of its obligations hereunder to a level below that which such Lender Bank (or its Parentparent) could have achieved but for such Regulatory Change, or compliance (taking into consideration such LenderBank’s policies with respect to capital and liquidity requirementsadequacy) by an amount deemed in good faith by such Lender Bank to be material, then from time to time, the Borrower Company shall pay to the Administrative Agent for the account of such Lender Bank, within ten days following delivery to the Company of the certificate specified in paragraph (c) below by such Bank, such additional amount or amounts as will compensate reimburse such Lender Bank (or its parent) for such reduction upon demand by such Lender (through the Administrative Agent)reduction.
(c) Each Bank shall notify the Company of any event occurring after the date hereof entitling such Bank to compensation under paragraph (a) or (b) of this Section 2.13 (together with a good faith estimate of the amounts it would be entitled to claim in respect of such event) as promptly as practicable, but in any event on or before the date which is 60 days after the related Regulatory Change or other event; provided that (i) if such Bank fails to give such notice by such date, such Bank shall, with respect to compensation payable pursuant to paragraph (a) or (b) of this Section 2.13 in respect of any costs resulting from such Regulatory Change or other event, only be entitled to payment under paragraph (a) or (b) of this Section 2.13 for costs incurred from and after the date of such notice and (ii) such Bank will take such reasonable actions, if any (including the designation of a different Applicable Lending Office for the Loans of such Bank affected by such event) to avoid the need for, or reduce the amount of, such compensation so long as such actions will not, in the reasonable opinion of such Bank, be materially disadvantageous to such Bank. A certificate of a Lender Bank setting forth in reasonable detail (i) the Regulatory Change or other event giving rise to such any costs, (ii) such amount or amounts as shall be necessary to compensate reimburse such Lender Bank (or participating banks or other entities pursuant to Section 9.11) as specified in paragraph (a) or (b) aboveof this Section 2.13, as the case may be, and (iii) the calculation of such amount or amounts under clause (a) or (b) aboveamounts, shall be delivered to the Borrower Company (with a copy to the Administrative Agent) promptly after such Lender Bank determines it is entitled to compensation payment under this Section 2.102.13, and shall be conclusive and binding absent manifest error 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 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 Changeerror. In preparing such certificate, such Lender Bank 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) The protection of In the event any Bank shall seek payment pursuant to this Section 2.10 2.13 or the events contemplated under Section 2.11 or Section 2.14 shall have occurred with respect to any Bank, the Company may, provided no Event of Default has occurred and is continuing, give notice to such Bank (with copies to the Agents) that it wishes to seek one or more assignees (which may be available to each Lender regardless of any possible contention of invalidity one or inapplicability more of the lawBanks, regulationbut which may not be a Person who would be entitled at such time to claim payment pursuant to this Section 2.13 or with respect to which any of the events contemplated under Section 2.11 or Section 2.14 would exist at such time if such Person were a Bank under this Agreement) to assume the Commitment of such Bank and to purchase its outstanding Loans and Notes (if any). Each Bank requesting payment pursuant to this Section 2.13, or condition with respect to which any of the events contemplated under Section 2.11 or Section 2.14 have occurred, agrees to sell its Commitment, Loans, Notes (if any), and interest in this Agreement and the other Loan Papers pursuant to Section 9.11(c) to any such assignee approved by the Company and the Administrative Agent for an amount equal to the sum of the outstanding unpaid principal of and accrued interest on such Loans and Notes (if any) plus all other fees and amounts (including, without limitation, any payment claimed by such Bank under this Section, 2.13 and as to which such Bank has delivered the certificate required by Section 2.13(c) on or before the date such Commitment, Loans, and Notes (if any) are purchased) due such Bank hereunder calculated, in each case, to the date such Commitment, Loans, Notes (if any) and interest are purchased, whereupon such Bank shall have been imposedno further Commitment or other obligation to the Company hereunder or under any other Loan Paper.
(e) Notwithstanding anything herein to the contrary, no Bank or participant shall be entitled to any payment under this Section 2.13 with respect to any Competitive Loan.
(f) Without prejudice to the survival of any other obligations of the Borrower Company hereunder, the obligations of the Borrower Company under this Section 2.10 2.13 shall survive for one year after the termination of this Agreement and/or the payment or assignment of any of the Loans or Notes.
Appears in 1 contract
Samples: Competitive Advance and Revolving Credit Facility Agreement (Southwest Airlines Co)
Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the Closing Date any Regulatory Change in Law (i) subjects shall subject any Lender Recipient to any Taxes (other than (x) Non-Excluded Taxes or Taxes described in clause (i) or (ii) of the first sentence in Section 2.19(a) or (y) any Tax that would not have been imposed but for the failure of any Lender to comply with any certification, information, documentation, or other reporting requirement if such Lender could legally comply and such compliance would not materially prejudice such Lender’s legal or commercial position) on its loans, loan principal principal, commitments, or other obligationsobligations hereunder, or its deposits, reserves, other liabilities or capital attributable theretothereto (other than (1) Indemnified Taxes, (2) Excluded Taxes and (3) Other Connection Taxes on gross or net income, profits or revenue (including value-added or similar Taxes)), or (ii) shall impose, modify, modify or deem applicable any reserve, special deposit, or similar requirement with respect to any LIBOR Loan (or participating interest therein), against assets of, deposits with or for the account of, of or credit extended by, by such Lender under this Agreement(except any such reserve requirement which is reflected in the Adjusted LIBO Rate), or (iii) with respect to any LIBOR Loan, shall impose on such Lender or the London interbank market any other condition affecting this Agreement or any LIBOR Eurodollar 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 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 will pay to the Administrative Agent for the account of such Lender such additional amount or amounts as will compensate such Lender for such increase additional costs incurred or reduction suffered in accordance with Section 2.12(c); provided, however, that no Lender shall demand compensation for any increased costs or reductions referred to in Section 2.12(a)(i) unless such demand is generally consistent with such Lender, to the extent ’s treatment of comparable borrowers of such amounts have not been included Lender in the calculation of the LIBOR Rate, upon demand United States with respect to similarly affected commitments or loans. This Section 2.12(a) shall not apply to matters covered by such Lender (through the Administrative Agent)Section 2.18.
(b) If any Lender shall have determined in good faith determines that any Regulatory Change in Law regarding capital adequacy or liquidity requirements or compliance by any Lender (or its Parent or any lending office of such Lender) with any request or directive regarding capital or liquidity requirements (whether or not having the force of Law) of any Tribunal, monetary authority, central bank, or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s (capital or its Parent’s) on the capital of such Lender’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 Parent) such Lender’s holding company could have achieved but for such Regulatory Change, or compliance Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy and liquidity requirements) by an amount deemed in good faith by such Lender to be materialliquidity), then from time to time, time 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 Lender (through the Administrative Agentsuffered in accordance with Section 2.12(c).
(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 or its holding company, as the case may be, as specified in paragraph (a) or (b) aboveof this Section and (ii) that it is such Lender’s customary practice, as from and after the case may be, (iii) the calculation date of such amount or amounts under clause (a) or (b) abovecertificate, to charge its borrowers for such increased costs incurred by such Lender 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 and (iv) confirmation from such Lender that such costs are also being assessed to other similarly situated borrowerserror. The Borrower shall pay to the Administrative Agent for the account of such Lender the amount shown as due on any such certificate within 15 5 days after its receipt thereof.
(d) Failure or delay on the part of the sameany Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to pay the Administrative Agent for the account of such compensate a Lender pursuant to this Section 2.10 for any amount specified in clause (a) increased costs or (b) above in respect of a period occurring reductions incurred more than 180 days prior to the date on which that such Lender notifies the Borrower of the Change in Law giving rise to such Regulatory Change increased costs or reductions and of such Lender’s intention to claim compensation therefor, except; provided further that, if the Regulatory Change in Law giving rise to any amount specified in clause (a) such increased costs or (b) above reductions is retroactive, no such time limitation shall apply so long as such Lender requests compensation within 180 days from then 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) The protection of this Section 2.10 180-day period referred to above shall be available extended to each Lender regardless include the period of any possible contention of invalidity or inapplicability of the law, regulation, or condition which shall have been imposedretroactive effect thereof.
(e) Without prejudice to the survival Promptly after any Lender becomes aware of any other obligations of circumstances that will, in its reasonable judgment, result in a request for compensation pursuant to this Section 2.12, such Lender shall notify the Borrower hereunder, the obligations thereof; provided that any failure of such Lender to so notify the Borrower under shall not constitute a waiver of such Lender’s right to demand compensation as provided in 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 or Notes2.12.
Appears in 1 contract
Samples: Revolving Credit Agreement (Artisan Partners Asset Management Inc.)
