Common use of Xxxxxxx Adequacy Clause in Contracts

Xxxxxxx Adequacy. (a) In the event that Agent, Swing Loan Lender or any Lender shall have determined that any Applicable Law or guideline regarding capital adequacy, or any Change in Law or any change in the interpretation or administration thereof by any Governmental Body, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by Agent, Swing Loan Lender, Issuer or any Lender (for purposes of this Section 3.9, the term “Lender” shall include Agent, Swing Loan Lender, Issuer or any Lender and any corporation or bank controlling Agent, Swing Loan Lender or any Lender and the office or branch where Agent, Swing Loan Lender or any Lender (as so defined) makes or maintains any LIBOR Rate Loans or CDOR Rate Loans) with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on Agent, Swing Loan Lender or any Lender’s capital as a consequence of its obligations hereunder (including the making of any Swing Loans) to a level below that which Agent, Swing Loan Lender or such Lender could have achieved but for such adoption, change or compliance (taking into consideration Agent’s, Swing Loan Lender’s and each Lender’s policies with respect to capital adequacy) by an amount deemed by Agent, Swing Loan Lender or any Lender to be material, then, from time to time, Borrowers shall pay upon demand to Agent, Swing Loan Lender or such Lender such additional amount or amounts as will compensate Agent, Swing Loan Lender or such Lender for such reduction. In determining such amount or amounts, Agent, Swing Loan Lender or such Lender may use any reasonable averaging or attribution methods. The protection of this Section 3.9 shall be available to Agent, Swing Loan Lender and each Lender regardless of any possible contention of invalidity or inapplicability with respect to the Applicable Law, rule, regulation, guideline or condition. (b) A certificate of Agent, Swing Loan Lender or such Lender setting forth such amount or amounts as shall be necessary to compensate Agent, Swing Loan Lender or such Lender with respect to Section 3.9(a) hereof when delivered to Borrowing Agent shall be conclusive absent manifest error.

Xxxxxxx Adequacy. (a) In the event that Agent, Swing Loan Lender or any Lender shall have determined that any Applicable Law or guideline regarding capital adequacy, or any Change in Law or any change in the interpretation or administration thereof by any Governmental Body, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by Agent, Swing Loan Lender, Issuer or any Lender (for purposes of this Section 3.9, the term “Lender” shall include Agent, Swing Loan Lender, Issuer or any Lender and any corporation or bank controlling Agent, Swing Loan Lender or any Lender and the office or branch where Agent, Swing Loan Lender or any Lender (as so defined) makes or maintains any LIBOR Rate Loans or CDOR Term SOFR Rate Loans) with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on Agent, Swing Loan Lender or any Lender’s capital as a consequence of its obligations hereunder (including the making of any Swing Loans) to a level below that which Agent, Swing Loan Lender or such Lender could have achieved but for such adoption, change or compliance (taking into consideration Agent’s, Swing Loan Lender’s and each Lender’s policies with respect to capital adequacy) by an amount deemed by Agent, Swing Loan Lender or any Lender to be material, then, from time to time, Borrowers shall pay upon demand to Agent, Swing Loan Lender or such Lender such additional amount or amounts as will compensate Agent, Swing Loan Lender or such Lender for such reduction. In determining such amount or amounts, Agent, Swing Loan Lender or such Lender may use any reasonable averaging or attribution methods. The protection of this Section 3.9 shall be available to Agent, Swing Loan Lender and each Lender regardless of any possible contention of invalidity or inapplicability with respect to the Applicable Law, rule, regulation, guideline or condition. (b) A certificate of Agent, Swing Loan Lender or such Lender setting forth such amount or amounts as shall be necessary to compensate Agent, Swing Loan Lender or such Lender with respect to Section 3.9(a) hereof when delivered to Borrowing Agent shall be conclusive absent manifest error.

Xxxxxxx Adequacy. (a) In the event that Agent, Swing Loan Lender or If any Lender shall have determined determines that any Applicable Law or guideline regarding capital adequacy, or any Change in Law after the Effective Date the introduction of or any change in the interpretation any applicable law or administration thereof by any Governmental Bodygovernmental rule, central bank regulation, order, guideline, directive or comparable agency charged with the interpretation or administration thereof, or compliance by Agent, Swing Loan Lender, Issuer or any Lender (for purposes of this Section 3.9, the term “Lender” shall include Agent, Swing Loan Lender, Issuer or any Lender and any corporation or bank controlling Agent, Swing Loan Lender or any Lender and the office or branch where Agent, Swing Loan Lender or any Lender (as so defined) makes or maintains any LIBOR Rate Loans or CDOR Rate Loans) with any request or directive regarding capital adequacy (whether or not having the force of law) of concerning capital adequacy, or any such authoritychange in interpretation or administration thereof by the NAIC or any Governmental Authority, central bank or comparable agency, has or would will have the effect of reducing increasing the amount of capital required or expected to be maintained by such Lender or any corporation controlling such Lender based on the existence of such Lender’s Commitment hereunder or its obligations hereunder, then the Borrower agrees to pay to such Lender, upon its written demand therefor, such additional amounts as shall be required to compensate such Lender or such other corporation for the increased cost to such Lender or such other corporation or the reduction in the rate of return on Agent, Swing Loan Lender or any Lender’s capital as a consequence of its obligations hereunder (including the making of any Swing Loans) to a level below that which Agent, Swing Loan such Lender or such Lender could have achieved but for other corporation as a result of such adoption, change or compliance (taking into consideration Agent’s, Swing Loan Lender’s and each Lender’s policies with respect to capital adequacy) by an amount deemed by Agent, Swing Loan Lender or any Lender to be material, then, from time to time, Borrowers shall pay upon demand to Agent, Swing Loan Lender or such Lender such additional amount or amounts as will compensate Agent, Swing Loan Lender or such Lender for such reductionincrease of capital. In determining such amount or additional amounts, Agent, Swing Loan each Lender or will act reasonably and in good faith and will use averaging and attribution methods which are reasonable; provided that such Lender may use any reasonable averaging or attribution methods. The protection Lender’s determination of compensation owing under this Section 3.9 shall 2.10 shall, absent manifest error, be available final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to Agentthis Section 2.10, Swing Loan Lender and each Lender regardless of any possible contention of invalidity or inapplicability with respect will give prompt written notice thereof to the Applicable LawBorrower, rule, regulation, guideline or conditionwhich notice shall show in reasonable detail the basis for calculation of such additional amounts. (b) A certificate Notwithstanding anything in this Agreement to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III shall in each case be deemed to be a change after the Effective Date in a requirement of Agentlaw or government rule, Swing Loan Lender regulation or such Lender setting forth such amount order, regardless of the date enacted, adopted, issued or amounts as shall be necessary to compensate Agent, Swing Loan Lender or such Lender with respect to implemented (including for purposes of this Section 3.9(a) hereof when delivered to Borrowing Agent shall be conclusive absent manifest error2.10).

Xxxxxxx Adequacy. (a) In the event that Agent, Swing Loan Lender or any Lender shall have determined that any Applicable Law or guideline regarding capital adequacy, or any Change in Law or any change in the interpretation or administration thereof by any Governmental Body, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by Agent, Swing Loan Lender, Issuer or any Lender (for purposes of this Section 3.9, the term “Lender” shall include Agent, Swing Loan Lender, Issuer or any Lender and any corporation or bank controlling Agent, Swing Loan Lender or any Lender and the office or branch where Agent, Swing Loan Lender or any Lender (as so defined) makes or maintains any LIBOR Term SOFR Rate Loans or CDOR Rate Loans) with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on Agent, Swing Loan Lender or any Lender’s capital as a consequence of its obligations hereunder (including the making of any Swing Loans) to a level below that which Agent, Swing Loan Lender or such Lender could have achieved but for such adoption, change or compliance (taking into consideration Agent’s, Swing Loan Lender’s and each Lender’s policies with respect to capital adequacy) by an amount deemed by Agent, Swing Loan Lender or any Lender to be material, then, from time to time, Borrowers shall pay upon demand to Agent, Swing Loan Lender or such Lender such additional amount or amounts as will compensate Agent, Swing Loan Lender or such Lender for such reduction. In determining such amount or amounts, Agent, Swing Loan Lender or such Lender may use any reasonable averaging or attribution methods. The protection of this Section 3.9 shall be available to Agent, Swing Loan Lender and each Lender regardless of any possible contention of invalidity or inapplicability with respect to the Applicable Law, rule, regulation, guideline or condition. (b) A certificate of Agent, Swing Loan Lender or such Lender setting forth such amount or amounts as shall be necessary to compensate Agent, Swing Loan Lender or such Lender with respect to Section 3.9(a) hereof when delivered to Borrowing Agent shall be conclusive absent manifest error.

Xxxxxxx Adequacy. If after the date hereof, Lender determines that (ai) In the event that Agentadoption of any applicable law, Swing Loan Lender rule, or any Lender shall have determined that any Applicable Law or guideline regulation regarding capital adequacyrequirements for Lenders or Lender holding companies or the subsidiaries thereof, or any Change in Law or (ii) any change in the interpretation or administration thereof of any such law, rule or regulation by any Governmental Bodygovernmental authority, central bank Lender, or comparable agency charged with the interpretation or administration thereof, or (iii) compliance by Agent, Swing Loan Lender, Issuer or any Lender (for purposes of this Section 3.9, the term “Lender” shall include Agent, Swing Loan Lender, Issuer or any Lender and any corporation or bank controlling Agent, Swing Loan Lender or any Lender and the office or branch where Agent, Swing Loan Lender or any Lender (as so defined) makes or maintains any LIBOR Rate Loans or CDOR Rate Loans) its holding company with any request or directive of any such governmental authority, central Lender or comparable agency regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency), has or would have the effect of reducing the rate of return on Agent, Swing Loan Lender or any Lender’s 's capital as a consequence of its obligations hereunder (including the making of any Swing Loans) to a level below that which Agent, Swing Loan Lender or such Lender could have achieved (taking into consideration Lender's and its holding company's policies with respect to capital adequacy immediately before such adoption, change, or compliance and assuming that Lender's capital was fully utilized prior to such adoption, change, or compliance) but for such adoption, change change, or compliance (taking into consideration Agent’s, Swing Loan as a consequence of Lender’s and each Lender’s policies with respect to capital adequacy) 's making advances pursuant hereto by an any amount deemed by Agent, Swing Loan Lender or any Lender to be material: (a) Lender shall promptly, thenafter Xxxxxx's determination of such occurrence, give written notice thereof to Borrower. (b) Unless Borrower elects to repay (without penalty) all Obligations outstanding under this Agreement, Borrower shall pay to Lender as an additional fee from time to time, Borrowers shall pay upon demand on written demand, such amount as Lender certified to Agentbe the amount that will compensate Lender for such reduction. (c) A certificate of Lender claiming entitlement to compensation as set forth above will be conclusive in the absence of manifest error. Such certificate will set forth the nature of the occurrence giving rise to such compensation, Swing Loan Lender or such Lender such the additional amount or amounts as will compensate Agentto be paid to Lender, Swing Loan Lender or and the method by which such Lender for such reductionamounts were determined. In determining such amount or amountsamount, Agent, Swing Loan Lender or such Lender may use any reasonable averaging or and attribution methods. The protection method, and the payment of this Section 3.9 shall be available to Agent, Swing Loan Lender and each Lender regardless of any possible contention of invalidity or inapplicability with respect to the Applicable Law, rule, regulation, guideline or condition. (b) A certificate of Agent, Swing Loan Lender or such Lender setting forth such amount by Borrower shall not be subject to a prepayment penalty, fee or amounts as shall be necessary to compensate Agent, Swing Loan Lender or such Lender with respect to Section 3.9(a) hereof when delivered to Borrowing Agent shall be conclusive absent manifest errorcharge.

Xxxxxxx Adequacy. (a) In the event that Agent, Swing Loan Lender Agent or any Lender shall have determined that any Applicable Law or guideline regarding capital adequacy, or any Change in Law or any change in the interpretation or administration thereof by any Governmental BodyAuthority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by Agent, Swing Loan Lender, Issuer Agent or any Lender (for purposes of this Section 3.93.6, the term “Lender” shall include Agent, Swing Loan Lender, Issuer Agent or any Lender and any corporation or bank controlling Agent, Swing Loan Lender Agent or any Lender Lender) and the office or branch where Agent, Swing Loan Lender Agent or any Lender (as so defined) makes or maintains any LIBOR Eurodollar Rate Loans or CDOR Rate Loans) with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on Agent, Swing Loan Lender Agent or any Lender’s capital as a consequence of its obligations hereunder (including the making of any Swing Loans) to a level below that which Agent, Swing Loan Lender Agent or such Lender could have achieved but for such adoption, change or compliance (taking into consideration Agent’s, Swing Loan Lender’s and each Lender’s policies with respect to capital adequacy) by an amount deemed by Agent, Swing Loan Lender Agent or any Lender to be material, then, from time to time, Borrowers shall pay upon demand to Agent, Swing Loan Lender Agent or such Lender such additional amount or amounts as will compensate Agent, Swing Loan Lender Agent or such Lender for such reduction. In determining such amount or amounts, Agent, Swing Loan Lender Agent or such Lender may use any reasonable averaging or attribution methods. The protection of this Section 3.9 3.6 shall be available to Agent, Swing Loan Lender Agent and each Lender regardless of any possible contention of invalidity or inapplicability with respect to the Applicable Law, rule, regulation, guideline regulation or condition. For purposes of this definition, the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all rules, regulations, orders, requests, guidelines or directives in connection therewith are deemed to have been adopted and gone into effect after the date of this Agreement. (b) A certificate of Agent, Swing Loan Lender Agent or such Lender setting forth such amount or amounts as shall be necessary to compensate Agent, Swing Loan Lender Agent or such Lender with respect to Section 3.9(a3.6(a) hereof when delivered to Borrowing Agent shall be conclusive absent manifest error; provided that Borrowers shall not be required to compensate a Lender pursuant to this Section for any increased costs incurred or reductions suffered more than 180 days prior to the date that such Lender notifies the applicable Borrower of the change in Applicable Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor (except that, if the change in Applicable Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof).

Xxxxxxx Adequacy. If after the date hereof any Lender or the Administrative Agent determines that (a) In the event that Agentadoption of or change after the Closing Date in any law, Swing Loan Lender governmental rule, regulation, policy, guideline or any Lender shall have determined that any Applicable Law directive (whether or guideline not having the force of law) regarding capital adequacy, requirements for banks or any Change in Law bank holding companies or any change in the interpretation or administration application thereof by any a Governmental Body, central bank or comparable agency charged Authority with the interpretation or administration thereofappropriate jurisdiction, or (b) compliance by Agent, Swing Loan Lender, Issuer such Lender or the Administrative Agent or any Lender (for purposes of this Section 3.9, the term “Lender” shall include Agent, Swing Loan Lender, Issuer or any Lender and any corporation or bank controlling Agent, Swing Loan such Lender or any Lender and the office or branch where Agent, Swing Loan Lender or any Lender (as so defined) makes or maintains any LIBOR Rate Loans or CDOR Rate Loans) Administrative Agent with any request law, governmental rule, regulation, policy, guideline or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agencyentity regarding capital adequacy, has or would have the effect of reducing the rate of return on Agent, Swing Loan Lender or any such Lender’s capital as a consequence of its obligations hereunder (including or the making of Administrative Agent’s commitment with respect to any Swing Loans) Loans to a level below that which Agent, Swing Loan such Lender or such Lender the Administrative Agent could have achieved but for such adoption, change or compliance (taking into consideration Agent’s, Swing Loan such Lender’s and each Lenderor the Administrative Agent’s then existing policies with respect to capital adequacyadequacy and assuming full utilization of such entity’s capital) by an any amount deemed by Agent, Swing Loan such Lender or any Lender (as the case may be) the Administrative Agent to be material, then, from time to time, Borrowers shall pay upon demand to Agent, Swing Loan then such Lender or the Administrative Agent may notify the Borrower of such fact. To the extent that the amount of such reduction in the return on capital is not reflected in the Base Rate, the Borrower and such Lender shall thereafter attempt to negotiate in good faith, within thirty (30) days of the day on which the Borrower receives such additional amount or amounts as notice, an adjustment payable hereunder that will adequately compensate Agent, Swing Loan Lender or such Lender for such reductionin light of these circumstances. In determining such amount or amounts, Agent, Swing Loan Lender or If the Borrower and such Lender may use any reasonable averaging or attribution methods. The protection are unable to agree to such adjustment within thirty (30) days of this Section 3.9 shall be available to Agentthe date on which the Borrower receives such notice, Swing Loan Lender and each Lender regardless then commencing on the date of such notice (but not earlier than the effective date of any possible contention of invalidity or inapplicability with respect to such increased capital requirement), the Applicable Lawfees payable hereunder shall increase by an amount that will, rulein such Lender’s reasonable determination, regulation, guideline or conditionprovide adequate compensation. Each Lender shall allocate such cost increases among its customers in good faith and on an equitable basis. (b) A certificate of Agent, Swing Loan Lender or such Lender setting forth such amount or amounts as shall be necessary to compensate Agent, Swing Loan Lender or such Lender with respect to Section 3.9(a) hereof when delivered to Borrowing Agent shall be conclusive absent manifest error.

Xxxxxxx Adequacy. (a) In the event that AgentIf any present or future law, Swing Loan Lender governmental rule, regulation, policy, guideline, directive or any Lender shall have determined that any Applicable Law or guideline regarding capital adequacy, or any Change in Law or any change in the interpretation or administration thereof by any Governmental Body, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by Agent, Swing Loan Lender, Issuer or any Lender (for purposes of this Section 3.9, the term “Lender” shall include Agent, Swing Loan Lender, Issuer or any Lender and any corporation or bank controlling Agent, Swing Loan Lender or any Lender and the office or branch where Agent, Swing Loan Lender or any Lender (as so defined) makes or maintains any LIBOR Rate Loans or CDOR Rate Loans) with any request or directive regarding capital adequacy similar requirement (whether or not having the force of law) imposes, modifies, or deems applicable any capital adequacy, capital maintenance or similar requirement which affects the manner in which Lender allocates capital resources to its commitments (including any commitments hereunder), and as a result thereof, in the reasonable opinion of any such authorityLender, central bank or comparable agency, has or would have the effect of reducing the rate of return on Agent, Swing Lender's capital with regard to the Loan Lender or any Lender’s capital as a consequence of its obligations hereunder (including the making of any Swing Loans) is reduced to a level below that which Agent, Swing Loan Lender or such Lender could would have achieved but for such adoptioncircumstances, change or compliance (taking into consideration Agent’s, Swing Loan Lender’s then in such case and each Lender’s policies with respect to capital adequacy) by an amount deemed by Agent, Swing Loan Lender or any upon notice from Lender to be material, thenBorrower, from time to time, Borrowers Borrower shall pay upon demand to Agent, Swing Loan Lender or such Lender such additional amount or amounts as will shall compensate Agent, Swing Loan Lender or such Lender for such reductionreduction in Lender's rate of return. In determining such A notice to Borrower from Lender as to the amount or amounts, Agent, Swing Loan of that reduction and showing the basis of the computation thereof submitted by Lender or such Lender may use any reasonable averaging or attribution methods. The protection of this Section 3.9 to Borrower shall be available presumptive evidence of the matters set forth therein.Increase of Maximum Loan Amount. Provided that: (i) there is no Default or Event of Default that shall have occurred and be continuing, (ii) Borrower's audited Financial Statements delivered pursuant to Agent, Swing Loan Lender and each Lender regardless of any possible contention of invalidity or inapplicability Section 6.8 hereof with respect to Fiscal Year 2010 show that Borrower has a minimum EBITDA of $7,000,000, calculated in a manner consistent with Section 6.7(a), as of December 31, 2010, and (iii) the Applicable LawNewtek Small Business Loan Trust Note Offering shall have been consummated substantially on the terms and conditions previously furnished to Lender and the proceeds of which shall have been used by Borrower (A) to prepay the Term Loans (as such term is defined in the Term Loan Agreement) in accordance with 2.5(b)(ii) of the Term Loan Agreement or (B) otherwise as agreed to between Borrower and Lender, ruleBorrower shall have the right, regulationupon not less than ten (10) Business Days' notice to Lender, guideline or condition. to increase the Maximum Loan Amount by an amount not to exceed $6,000,000 (b) A certificate of Agent, Swing the "Maximum Loan Amount Increase"). The Maximum Loan Amount Increase shall also be subject to such modifications to this Agreement and the other Loan Documents as Lender or such Lender setting forth such amount or amounts shall reasonably request as shall be necessary to compensate Agenteffect the Maximum Loan Amount Increase (including, Swing without limitation, the execution and delivery by Borrower of an amended and restated Note and modifications to the Loan Documents relating to a syndication of the Loan by Lender). In addition, in the event Lender or shall determine to syndicate the Loan in connection with the Maximum Loan Amount Increase, Borrower agrees that it will enter into such modifications to the Loan Documents as Lender with respect may reasonably request in order to complete a successful syndication of the Loan as determined by Lender in the exercise of its reasonable discretion. Such modifications may include, without limitation, reallocation of the Loan and the potential making of future Advances, adjustments to the Base Rate Margin, and adjusting any financial covenant requirements. Only one such increase in the Maximum Loan Amount may be requested by Borrower pursuant to this Section 3.9(a) hereof when delivered to Borrowing Agent shall be conclusive absent manifest error2.11.

Xxxxxxx Adequacy. (a) In Without limiting any other provision of this Agreement, in the event that Agent, Swing Loan Lender or any Lender Bank shall have determined that any Applicable Law or guideline regarding capital adequacy, or any Regulatory Change in Law or any change in the interpretation or administration thereof by any Governmental Body, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by Agent, Swing Loan Lender, Issuer or any Lender (for purposes of this Section 3.9, the term “Lender” shall include Agent, Swing Loan Lender, Issuer or any Lender and any corporation or bank controlling Agent, Swing Loan Lender or any Lender and the office or branch where Agent, Swing Loan Lender or any Lender (as so defined) makes or maintains any LIBOR Rate Loans or CDOR Rate Loans) Bank with any request or directive regarding capital adequacy (whether or not having the force of lawlaw and whether or not failure to comply therewith would be unlawful) of any such authority, from a central bank or comparable agencygovernmental authority or body having jurisdiction, has does or would shall have the effect of reducing the rate of return on Agent, Swing Loan Lender or any Lender’s such Bank's capital as a consequence of its obligations hereunder (including the making of any Swing Loans) to a level below that which Agent, Swing Loan Lender or such Lender the Bank could have achieved but for such adoptionlaw, treaty, rule, regulation, guideline or order, or such change or compliance (taking into consideration Agent’s, Swing Loan Lender’s and each Lender’s the Bank's policies with respect to capital adequacy) by an amount deemed by Agent, Swing Loan Lender or any Lender the Bank to be material, thenthen within thirty (30) days after written notice and demand by the Bank, the Borrower shall from time to time, Borrowers shall time pay upon demand to Agent, Swing Loan Lender or such Lender such the Bank additional amount or amounts as will sufficient to compensate Agent, Swing Loan Lender or such Lender the Bank for such reduction. In determining such amount or amounts, Agent, Swing Loan Lender or such Lender may use any reasonable averaging or attribution methods. The protection of this Section 3.9 shall be available to Agent, Swing Loan Lender and each Lender regardless of any possible contention of invalidity or inapplicability with respect Each certificate as to the Applicable Lawamount payable under this Section, rulesubmitted to the Credit Party by the Bank, regulationshall, guideline or conditionabsent manifest error, be final, conclusive and binding for all purposes. (b) A If any Bank demands any additional amount from the Borrower pursuant to the provisions of this Section, and so long as no Default or Event of Default has occurred and is then continuing, the Borrower may, in its discretion, at any time within sixty (60) days after the receipt of the certificate of Agentsuch Bank (but subject to Section 3.01A(b) and 3.01A(c)): (a) (x) terminate such Bank's Revolving Credit Commitment or Commercial Paper Commitment, Swing Loan Lender or both, and such Lender setting forth Bank's entitlement to any fees accruing after such amount termination and (y) prepay such Bank's portion of the Series A Revolving Credit Loans or Series B Commercial Paper Loans and Series C Commercial Paper Loans (as the case may be) (plus all amounts as shall be necessary payable hereunder to compensate Agentsuch Bank for additional costs, Swing Loan Lender reduction or such Lender payment with respect to Section 3.9(athe period prior to prepayment), together with accrued interest on the amount thereof through the date of such prepayment, or (b) hereof when delivered to Borrowing Agent provide a replacement for such Bank. Upon any exercise of either of the rights described in clause (a) above, the Total Revolving Credit Commitment or the Total Commercial Paper Commitment, or both, and the Total Commitment shall be conclusive absent manifest errorautomatically and irrevocably reduced by the amount of the terminated Commitment. Any new bank provided by the Borrower shall be an Eligible Assignee, within the meaning specified in Section 15.04(b)(v), and the Bank being replaced shall assign its rights and obligations to such Eligible Assignee in accordance with the provisions of Section 15.04(a) through (e). Until any such replacement occurs, the Borrower shall pay all additional amounts required under this Section to such Bank. The Borrower shall pay all reasonable costs and expenses of effecting such replacement.