Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change: (A) shall subject an Affected Party to any Tax, duty or other charge with respect to the portion of the Asset Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or (B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or (C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or (D) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or (E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be (A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor, (B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or (C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction. (b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation. (c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller. (d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 6 contracts
Samples: Receivables Purchase Agreement (Lennox International Inc), Receivables Purchase Agreement (Lennox International Inc), Receivables Purchase Agreement (Lennox International Inc)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange occurring or implemented after the date hereof or, without limiting the generality of the foregoing, any Specified Regulation:
(Ai) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the any Asset Interest owned by owned, maintained or funded by itit (or its participation in any of the forgoing), or any obligations or right to make Purchases or Reinvestments or to provide funding thereforor maintenance therefor (or its participation in any of the foregoing), or shall change the basis of taxation of payments to the Affected Party or other Indemnified Party of any portion of the Invested Amount, CP Costs Purchasers’ Total Investment or Earned Discount Yield owned by, owed to to, funded or funded maintained in whole or in part by it (or its participation in any of the foregoing) or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by owned, maintained or funded by it or its obligations or rights, if any, to make or participate in Purchases or Reinvestments or to provide funding therefor; ortherefor or the maintenance thereof;
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount)reserve, special deposit deposit, compulsory loan, insurance charge or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board or other Governmental Authority to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or;
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(Diii) shall impose any other condition affecting any Asset Interest owned owned, maintained or funded (or participated in) in whole or in part by any Affected Party, or its obligations or rights, if any, to make (or participate in) Purchases or Reinvestments or to provide (or participate in) funding therefor; ortherefor or the maintenance thereof;
(Eiv) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) or similar Person assesses, deposit insurance premiums or similar chargescharges which an Affected Party is obligated to pay; or
(v) shall change the amount of capital or liquidity maintained or required or requested or directed to be maintained by any Affected Party; and the result of any of the foregoing is or would be, in each case, as determined by the applicable Purchaser Agent or the applicable Affected Party:
(A) to increase the cost to (or to impose a cost on on) (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, any Enhancement Agreement or any commitment (hereunder or under any Liquidity Agreement or any Enhancement Agreement) of such Affected Party with respect to any of the foregoing, or (2) a Program Administrator, any Purchaser Agent or Administrative Agent for continuing its or the Seller’s relationship with any Investor,Purchaser;
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement, any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement, ) with respect thereto; or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an such Affected Party or its holding company as a consequence of its obligations hereunder hereunder, under any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement), including its funding or maintenance of any portion of the Asset Interest, or arising in connection herewith (or therewith) to a level below that which such Affected Party or its holding company could otherwise have achieved, achieved hereunder or thereunder (taking into consideration such Affected Party’s policies and the policies of such Affected Party’s holding company with respect to capital adequacy); then, subject to Section 4.2(d) below, on the Settlement Date (or during the Liquidation Period or after the occurrence of an Event of Termination that has not been waived in accordance with the terms of this Agreement, within thirty days after demand by two (2) Business Days) following its receipt of notice from such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed or by the Affected PartyAdministrative Agent or a Purchaser Agent on its behalf) in accordance with Section 4.2(c), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, (or the Administrative Agent and the or a Purchaser Agent for the Purchaser Group of such Affected Partyon its behalf), if applicable, shall promptly notify Seller and Administrative Agent of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, that no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (it, in its reasonable sole discretion) , shall deem applicable. Any Affected Party (or the Administrative Agent or a Purchaser Agent on its behalf) when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to and Administrative Agent a written statement of such increased cost or reduced return (including calculation thereof in reasonable detail)return, which statement shallstatement, in the absence of demonstrable manifest error, shall be conclusive and binding upon the Seller.
(d) For Failure or delay on the avoidance part of doubt, (w) any interpretation of FAS 166 or FAS 167 Affected Party (or any successor Accounting Standards Codification SubtopicAdministrative Agent or a Purchaser Agent) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case to demand compensation pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.24.2 shall not constitute a waiver of such Affected Party’s (or the Administrative Agent’s or a Purchaser Agent’s on its behalf) right to demand such compensation.
Appears in 4 contracts
Samples: Receivables Purchase Agreement (C. H. Robinson Worldwide, Inc.), Receivables Purchase Agreement (C. H. Robinson Worldwide, Inc.), Receivables Purchase Agreement (C H Robinson Worldwide Inc)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange in Law:
(Ai) shall subject an Affected Party Person to any Taxduty, duty cost or other charge (other than Taxes, which shall be governed by Section 4.03) with respect to the portion of the Asset Interest owned by any Loan owned, maintained or funded by itit (or its participation in any of the forgoing), or any obligations or right to make Purchases or Reinvestments Loans or to provide funding thereforor maintenance therefor (or its participation in any of the foregoing);
(ii) shall impose, modify, or shall change the basis of taxation of payments to the Affected Party deem applicable any reserve, special deposit, or similar requirement against assets of any portion Affected Person, deposits, or obligations with or for the account of any Affected Person or with or for the Invested Amountaccount of any Affiliate (or entity deemed by the Federal Reserve Board or other Governmental Authority to be an affiliate) of any Affected Person, CP Costs or Earned Discount owned bycredit extended by any Affected Person;
(iii) shall impose any other condition affecting any Loan owned, owed to maintained, or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it Affected Person, or its obligations or rights, if any, to make Purchases (or Reinvestments participate in) Loans or to provide (or participate in) funding therefortherefor or the maintenance thereof;
(iv) shall change the rate for, or changes the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) or similar Person assesses, deposit insurance premiums, or similar charges which an Affected Person is obligated to pay; or
(Bv) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliatei) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
Person or (Dii) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by subject any Affected PartyPerson to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (ii) through (iv) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its Loans, the Receivable Pool or Related Assets, commitments, or other obligations, or its obligations or rightsdeposits, if anyreserves, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate forother liabilities, or the manner in which the Federal Deposit Insurance Corporation (or a successor capital attributable thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be, in each case, as determined by the applicable Group Agent or the applicable Affected Person:
(A) to increase the cost to (or to impose a cost on on) (1) an Affected Party Person funding or making or maintaining any Purchases or ReinvestmentsLoans, any corresponding purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, any Enhancement Agreement, or any commitment (hereunder or under any Liquidity Agreement or any Enhancement Agreement) of such Affected Party Person with respect to any of the foregoing, or (2) the Collateral Agent, any Group Agent, or the Administrative Agent for continuing its or the Seller’s relationship with any Investor,Lender in such capacities hereunder;
(B) to reduce the amount of any sum received or receivable by an Affected Party Person under this Agreement Agreement, or any corresponding amount received or receivable under any Liquidity Agreement or any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement, ) with respect thereto; or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an such Affected Party Person as a consequence of its obligations hereunder hereunder, any corresponding obligations under any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement), including its funding or maintenance of any portion of any Principal, or arising in connection herewith (or therewith) to a level below that which such Affected Party Person could otherwise have achievedachieved hereunder or thereunder, then, within thirty days after demand the Borrower shall pay to the Payment Account, by the date that is no later than three (3) Business Days prior to the Settlement Date following the Settlement Period in which it receives notice of the related claim from such Affected Party Person (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed or by the Affected Party), the Seller shall pay directly Administrative Agent or a Group Agent on its behalf) for payment to such Affected Party Person on such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reductionSettlement Date in accordance with Section 4.01(c).
(b) Each Affected Party will Person (or the Administrative Agent or a Group Agent on its behalf), shall use commercially reasonable efforts to promptly notify the Seller, Servicer (on behalf of the Borrower) and the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has actual knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party Person to compensation pursuant to this Section 4.24.01; provided, however, no failure that the Borrower shall not be required to give compensate an Affected Person pursuant to this Section 4.01 for any increased costs or delay reductions incurred more than 180 days prior to the date that such Affected Person notifies the Borrower of the Change in Law giving such notification shall adversely affect the rights of any Affected Party rise to such compensationincreased costs or reductions and of such Affected Person’s intention to claim compensation therefor; provided, further, that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180 day period referred to above shall be extended to include the period of retroactive effect thereof.
(c) In determining any amount provided for or referred to in this Section 4.24.01, an Affected Party Person may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (it, in its reasonable sole discretion) , shall deem applicable. Any Affected Party Person (or the Administrative Agent or a Group Agent on its behalf) when making a claim under this Section 4.2 4.01 shall submit to the Seller Servicer (on behalf of the certificate (referred to in subsection (aBorrower) above) as to and the Administrative Agent a written statement of such increased cost or reduced return (including calculation thereof in reasonable detail)return, which statement shallstatement, in the absence of demonstrable manifest error, shall be conclusive and binding binding; provided, that any such statement claiming amounts described in clause (x) or (y) of the definition of “Change in Law” shall, in addition, state the basis upon which such amount has been calculated and certify that such Affected Person’s demand for payment of such costs hereunder, and such method of allocation is not inconsistent with its treatment of other borrowers under similar warehouse securitization facilities which, as a credit matter, are similarly situated to the SellerBorrower and which are subject to similar provisions.
(d) For Except as set forth in Section 4.01(b), no failure or delay on the avoidance part of doubt, (w) any interpretation of FAS 166 or FAS 167 Affected Person (or the Administrative Agent or any successor Accounting Standards Codification SubtopicGroup Agent) by to demand compensation pursuant to this Section 4.01 shall not constitute a waiver of such Affected Person’s (or the Financial Accounting Standards Board Administrative Agent’s or any Group Agent’s on its behalf) right to demand such compensation or otherwise adversely affect the rights of any Affected Person to such compensation.
(e) The Borrower acknowledges that any Affected Person may institute measures in anticipation of a Change in Law (including, without limitation, the imposition of internal charges on such Affected Person’s interests or obligations under this Agreement), and any pronouncement, interpretation may commence allocating charges to or release by seeking compensation from the International Accounting Standards Board, (x) any request, rule, guideline or directive Borrower under or issued this Section 4.01 in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law)such measures, regardless in advance of the effective date enactedof such Change in Law, adopted and the Borrower agrees to pay such charges or issuedcompensation to such Affected Person, to the extent such charges or (y) any request, rule, guideline or directive promulgated compensation would otherwise be payable by the Bank for International SettlementsBorrower under this Section 4.01 after such effective date of such Change in Law, following demand therefor without regard to whether such effective date has occurred but only to the Basel Committee extent of, and on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant after such Affected Person’s measures must be implemented prior to Basel III, regardless such effective date at the demand of the date enacted, adopted applicable prudential regulator. The Borrower further acknowledges that any charge or issued, shall, in each compensation demanded hereunder may take the form of a monthly charge to be assessed by such case, constitute an adoption, change, request or directive subject to this Section 4.2Affected Person.
Appears in 3 contracts
Samples: Receivables Financing Agreement (ADT Inc.), Receivables Financing Agreement (ADT Inc.), Receivables Financing Agreement (ADT Inc.)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange occurring after the date hereof:
(Ai) shall subject an Affected Party to any Tax, duty or other charge with respect to the portion of the Asset Interest owned by its Obligations or, as applicable, its Commitment or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding thereforits Liquidity Commitment, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs or Earned Discount owned byObligations, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of its Obligations or, as applicable, its Commitment or its Liquidity Commitment except for (A) Taxes based on, or measured by, net income or net profits, or changes in the portion rate of Tax on or determined by reference to the overall net income or net profits, of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party’s principal executive office and/or its applicable lending office is located and, if such Affected Party’s principal executive office or its applicable lending office is not in the United States of America, by the jurisdiction where such Affected Party’s principal office or applicable lending office is located, (B) franchise Taxes, Taxes on, or in the nature of, doing business Taxes or capital Taxes, or (C) withholding Taxes required for payments made to any foreign entity (other than withholding Taxes imposed by the United States as a result of a change in law after the date hereof and before such foreign entity issues its Commitment or Liquidity Commitment or becomes an assignee of a Lender hereunder), unless such foreign entity fails to deliver to each of the Asset Interest owned by Co-Agents and the Borrower an accurate IRS Form W-8BEN or funded by it W-8ECI (or its obligations or rightsthe applicable successor form), if any, to make Purchases or Reinvestments or to provide funding thereforas applicable; or
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve that was not included in the determination computation of Earned Discount)the applicable Interest Rate, or any special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(Ciii) shall change affect the amount of capital maintained or required or requested or directed expected to be maintained by any Affected Party; or
(Div) shall impose any other condition affecting any Asset Interest Obligation owned or funded in whole or in part by any Affected Party, or its obligations rights or rightsobligations, if any, to make Purchases Loans or Reinvestments or to provide funding thereforLiquidity Fundings; or
(Ev) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, assesses deposit insurance premiums or similar charges; or
(vi) shall require any Conduit to be consolidated for financial accounting purposes with any other Person; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.:
Appears in 3 contracts
Samples: Credit and Security Agreement (Quest Diagnostics Inc), Credit and Security Agreement (Quest Diagnostics Inc), Credit and Security Agreement (Quest Diagnostics Inc)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange occurring after the date hereof:
(A) shall subject an Affected Party or any of their interests to any Taxtax, duty or other charge with respect to the portion of the Asset any Receivable Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Capital or Earned Discount Yield owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Receivable Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for franchise taxes or changes in the rate of tax on the overall net income of such Affected Party); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount)special deposit, special deposit compulsory loan or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party, but excluding any reserve, special deposit or similar requirement included in the determination of Yield; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Receivable Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.is;
Appears in 3 contracts
Samples: Receivables Purchase Agreement (Land O Lakes Inc), Receivables Purchase Agreement (Land O Lakes Inc), Receivables Purchase Agreement (Land O Lakes Inc)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:Change occurring after the date hereof
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the any Asset Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Purchaser's Total Investments or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for changes in the rate of tax on or determined by reference to the overall net income of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 3 contracts
Samples: Receivables Purchase Agreement (KBK Capital Corp), Receivables Purchase Agreement (KBK Capital Corp), Receivables Purchase Agreement (KBK Capital Corp)
Yield Protection. (a) If (i) a change to Regulation D or (ii) any Regulatory Change, in either case, occurring after the date hereof:
(Aa) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset Interest owned by its Obligations or, as applicable, its Commitment or funded by it, or its commitment under any obligations or right to make Purchases or Reinvestments or to provide funding thereforLiquidity Agreement, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs or Earned Discount owned byObligations, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it its Obligations or, as applicable, its Commitment or its obligations commitment under any Liquidity Agreement except for (1) taxes based on, or rightsmeasured by, if anynet income, or changes in the rate of tax on or determined by reference to make Purchases the overall net income, of such Affected Party, (2) franchise taxes, taxes on, or Reinvestments in the nature of, doing business taxes or capital taxes, or (3) withholding taxes required for payments made to provide funding thereforany foreign entity which, at the time such foreign entity issues its Commitment or Liquidity Commitment or becomes an assignee of a Lender hereunder, fails to deliver to the Agent and the Borrower an accurate IRS Form W-8 BEN or W-8 ECI, as applicable; or
(Bb) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discountinterest), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(Cc) shall change affect the amount of capital maintained or required or requested or directed expected to be maintained by any Affected Party; or
(Dd) shall impose any other condition affecting any Asset Interest Obligation owned or funded in whole or in part by any Affected Party, or its obligations rights or rightsobligations, if any, to make Purchases Loans or Reinvestments or to provide funding thereforLiquidity Fundings; or
(Ee) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, assesses deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.:
Appears in 3 contracts
Samples: Credit and Security Agreement (Packaging Corp of America), Credit and Security Agreement (Packaging Corp of America), Credit and Security Agreement (Packaging Corp of America)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:Change occurring after the date hereof
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the any Asset Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Capital or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for franchise taxes or changes in the rate of tax on the overall net income of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit deposit, compulsory loan or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party, but excluding any reserve, special deposit or similar requirement included in the determination of Earned Discount; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.is
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Maxtor Corp), Receivables Purchase Agreement (Maxtor Corp)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:Change occurring after the date hereof
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset any Undivided Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Purchaser's Investments or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset any Undivided Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for changes in the rate of tax on or based upon the overall net income of such Affected Party imposed by the United States of America and any state, local or foreign jurisdiction in which such Affected Party is subject to income taxation); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board to be an affiliateAffiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Undivided Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Sci Systems Inc), Receivables Purchase Agreement (Sci Systems Inc)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange in Law:
(Ai) shall subject an Affected Party to any Tax, duty or other charge (other than Taxes, which shall be governed by Section 3.3(e)) with respect to the portion of the any Investment or interest in any Asset Interest owned by Portfolio owned, maintained or funded by itit (or its participation in any of the forgoing), or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of maintenance therefor (or its participation in any portion of the Invested Amount, CP Costs or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; orforegoing);
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount)reserve, special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board or other Governmental Authority to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or;
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(Diii) shall impose any other condition affecting any Investment or any Asset Interest owned Portfolio owned, maintained or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make (or participate in) Purchases or Reinvestments or to provide (or participate in) funding therefor; ortherefor or the maintenance thereof;
(Eiv) shall change the rate for, or changes the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) or similar Person assesses, deposit insurance premiums or similar chargescharges which an Affected Party is obligated to pay; or
(v) shall (i) change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party or (ii) subject any Affected Party to any Taxes (other than (A) Indemnified Taxes and (B) Excluded Taxes) on its Purchases, Asset Portfolios, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; and the result of any of the foregoing is or would be, in each case, as determined by the applicable Purchaser Agent or the applicable Affected Party:
(A) to increase the cost to (or to impose a cost on on) (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, any Enhancement Agreement or any commitment (hereunder or under any Liquidity Agreement or any Enhancement Agreement) of such Affected Party with respect to any of the foregoing, or (2) the Collateral Agent, any Purchaser Agent or any Administrative Agent for continuing its or the Seller’s relationship with any Investor,Purchaser;
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement, any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement, ) with respect thereto; or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an such Affected Party as a consequence of its obligations hereunder hereunder, under any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement), including its funding or maintenance of any portion of any Investment or any Asset Portfolio, or arising in connection herewith (or therewith) to a level below that which such Affected Party could otherwise have achievedachieved hereunder or thereunder, then, subject to Section 4.2(d) below, on the Settlement Date (or during the Liquidation Period or after the occurrence of an Event of Termination, Collection Control Event or Non-Reinvestment Event that remains continuing, within thirty days after demand by two (2) Business Days) following its receipt of notice from such Affected Party (which demand shall be accompanied or by an Administrative Agent or a certificate setting forth, Purchaser Agent on its behalf) in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Partyaccordance with Section 4.2(c), the Seller Sellers shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will (or an Administrative Agent or a Purchaser Agent on its behalf), shall promptly notify the Seller, Servicer (on behalf of the Sellers) and each Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, that no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation; provided that the Sellers shall not be required to compensate an Affected Party for any increased costs or reductions incurred more than six months prior to the date that such Affected Party notifies the Sellers of such event giving rise to such increased costs or reductions and of such Affected Party’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (it, in its reasonable sole discretion) , shall deem applicable. Any Affected Party (or an Administrative Agent or a Purchaser Agent on its behalf) when making a claim under this Section 4.2 shall submit to the Seller Servicer (on behalf of the certificate (referred to in subsection (aSellers) above) as to and the Administrative Agents a written statement of such increased cost or reduced return (including calculation thereof in reasonable detail)return, which statement shallstatement, in the absence of demonstrable manifest error, shall be conclusive and binding upon so long as it reflects a reasonable basis for the Sellercalculation of the amounts set forth therein.
(d) For Failure or delay on the avoidance part of doubt, (w) any interpretation of FAS 166 or FAS 167 Affected Party (or any successor Accounting Standards Codification SubtopicAdministrative Agent or any Purchaser Agent) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or to demand compensation pursuant to this Section 4.2 shall not having the force constitute a waiver of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision such Affected Party’s (or any successor Administrative Agent’s or similar authorityany Purchaser Agent’s on its behalf) right to demand such compensation; provided that the Sellers shall not be required to compensate an Affected Party for any increased costs or United States regulatory authorities, in each case pursuant reductions incurred more than six (6) months prior to Basel III, regardless the date that such Affected Party notifies the Sellers of the date enactedevent giving rise to such increased costs or reductions and of such Affected Party’s intention to claim compensation therefor; provided further that, adopted if the Change in Law giving rise to such increased costs or issuedreductions is retroactive, shallthen the six-month period referred to above shall be extended to include the period of retroactive effect thereof.
(e) Notwithstanding anything to the contrary set forth in this Agreement, in each such case, constitute an adoption, change, request or directive subject Sellers shall not be liable to any member of any Purchaser Group for any amounts under this Section 4.24.2 caused by delivery of a Delayed Purchase Notification by any member of such Purchaser Group.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (SPRINT Corp), Receivables Purchase Agreement (SPRINT Corp)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:Change occurring after the date hereof
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the Loan or any portion of the Asset Interest owned by or funded by itthereof, or any obligations or right to make Purchases or Reinvestments Loans or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Outstanding Balances or Earned Discount owned byInterest, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the Loan or any portion of the Asset Interest owned by or funded by it thereof or its obligations or rights, if any, to make Purchases or Reinvestments Loans or to provide funding therefortherefor (except for Excluded Taxes); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned DiscountInterest), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting the Loan or any Asset Interest portion thereof owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments Loans or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a any successor thereto) assesses, deposit insurance premiums or similar charges, or shall impose on any Affected Party a requirement to maintain deposit insurance; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 2 contracts
Samples: Loan Agreement (Meridian Venture Group LLC), Loan Agreement (Meridian Venture Group LLC)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:Change occurring after the date hereof
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the any Asset Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Capital or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for franchise taxes or changes in the rate of tax on the net income of such Affected Party imposed by any jurisdiction); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit deposit, compulsory loan or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party, but excluding any reserve, special deposit or similar requirement included in the determination of Earned Discount; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.is
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Conmed Corp), Receivables Purchase Agreement (Conmed Corp)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:Change occurring after the date hereof
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset any Undivided Interest or Interests owned by or funded by it, if any, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Purchaser's Investments or Earned Discount owned by, made by or owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest any Undivided Interests owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for changes in the rate of tax on the overall net income of such Affected Party imposed by the United States of America or the jurisdiction in which such Affected Party's principal executive office is located); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Partyof, deposits or obligations with or for the account of any Affected Party (or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Partyof), or credit extended by by, any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any such Affected Party; or
(D) shall impose any other condition affecting any Asset Interest Undivided Interests owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Applied Power Inc), Receivables Purchase Agreement (Applied Power Inc)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:Change occurring after the date hereof
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset any Undivided Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Purchaser's Investments or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset any Undivided Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for changes in the rate of tax on or based upon the overall net income of such Affected Party imposed by the United States of America and any state, local or foreign jurisdiction in which such Affected Party is subject to income taxation); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board to be an affiliateAffiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset portion of the Undivided Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Sci Systems Inc), Receivables Purchase Agreement (Sanmina-Sci Corp)
Yield Protection. (a) If after the date hereof (i) Regulation D of the Board of Governors of the Federal Reserve System or (ii) any Regulatory Change:
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset Interest any Loan or Certificate owned by or funded by it, or any obligations or right to make Purchases Loans or Reinvestments purchase Certificates or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs interest or Earned Discount owned by, principal owed with respect to Loans or Certificates funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest Loans or Certificates owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments Loans, purchase Certificates or to provide funding therefortherefor (except for changes in the rate of tax on the overall net income of such Affected Party imposed by the United States of America or by any jurisdiction in which such Affected Party is organized or maintains its principal executive office or an office from which it makes Loans); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discountinterest on the Loans or Certificates), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board to be an affiliateAffiliate) of any Affected PartyParty (to the extent such Affiliate is providing funding, liquidity or credit enhancement for the Loans or Certificates), or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; or
(E) shall impose any other condition affecting any Loan or Certificate owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Loans, purchase Certificates or to provide funding therefor; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (TRM Corp), Loan and Servicing Agreement (TRM Corp)
Yield Protection. (a) If (i) Regulation D or (ii) any ---------------- Regulatory Change:Change occurring after the date hereof
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the Transferee's Interest or any portion of the Asset Interest owned by or funded by itthereof, or any obligations or right to accept or make Purchases Transfers or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Transferee's Investment or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the Transferee's Interest or any portion of the Asset Interest owned by or funded by it thereof or its obligations or rights, if any, to accept or make Purchases Transfers or Reinvestments or to provide funding therefortherefor (except for changes in the rate of tax on the overall net income of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting the Transferee's Interest or any Asset Interest portion thereof owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to accept or make Purchases Transfers or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a any successor thereto) assesses, deposit insurance premiums or similar charges, or shall impose on any Affected Party a requirement to maintain deposit insurance; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 2 contracts
Samples: Receivables Transfer Agreement (Ikon Office Solutions Inc), Receivables Transfer Agreement (Alco Standard Corp)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange including any Specified Regulation:
(Ai) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the any Asset Interest owned by owned, maintained or funded by itit (or its participation in any of the foregoing), or any obligations or right to make Purchases or Reinvestments or to provide funding thereforor maintenance therefor (or its participation in any of the foregoing), or shall change the basis of taxation of payments to the Affected Party or other Indemnified Party of any portion of the Invested Amount, CP Costs Total Investment or Earned Discount Yield owned by, owed to to, funded or funded maintained in whole or in part by it (or its participation in any of the foregoing) or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by owned, maintained or funded by it or its obligations or rights, if any, to make or participate in Purchases or Reinvestments or to provide funding therefor; ortherefor or the maintenance thereof;
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount)reserve, special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board or other Governmental Authority to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or;
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(Diii) shall impose any other condition affecting any Asset Interest owned owned, maintained or funded (or participated in) in whole or in part by any Affected Party, or its obligations or rights, if any, to make (or participate in) Purchases or Reinvestments or to provide (or to participate in) funding therefor; ortherefor or the maintenance thereof;
(Eiv) shall change increase the rate for, or changes the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) or similar Person assesses, deposit insurance premiums or similar chargescharges which an Affected Party is obligated to pay; or
(v) shall increase the amount of capital or liquidity maintained or required or requested or directed to be maintained by any Affected Party; and the result of any of the foregoing is or would be, in each case, as determined by the applicable Purchaser Agent or the applicable Affected Party:
(A) to increase the cost to (or to impose a cost on on) (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, any Enhancement Agreement or any commitment (hereunder or under any Liquidity Agreement or any Enhancement Agreement) of such Affected Party with respect to any of the foregoing, or (2) any Purchaser Agent or Administrative Agent for continuing its or the Seller’s relationship with any Investor,Purchaser;
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement, any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement, ) with respect thereto; or
(C) in the reasonable determination of such Affected Party, (i) to reduce the rate of return on the capital of an such Affected Party as a consequence of its obligations hereunder hereunder, under any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement), including its funding or maintenance of any portion of the Asset Interest, or arising in connection herewith (or therewith) to a level below that which such Affected Party could otherwise have achievedachieved hereunder or thereunder or (ii) to increase the liquidity required of such Affected Party as a consequence of its obligations hereunder or under any Liquidity Agreement or any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement), including its funding or maintenance of any portion of the Asset Interest, or arising in connection herewith (or therewith) to a level greater than that which such Affected Party could otherwise have achieved hereunder or thereunder, then, subject to Section 4.2(d) below, on the Settlement Date (or during the Liquidation Period or after the occurrence of an Event of Default that has not been waived in accordance with the terms of this Agreement, within thirty days after demand by two (2) Business Days) following its receipt of notice from such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed or by the Affected Party)Administrative Agent or a Purchaser Agent on its behalf) in accordance with Section 4.2(c) below, the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reductionreduction or liquidity increase; provided that such additional amount or amounts shall not be payable with respect to any Regulatory Change for any period in excess of 180 days prior to the date of demand by the Affected Party unless (1) the effect of such Regulatory Change was retroactive by its terms to a period prior to the date of such Regulatory Change, in which case any additional amount or amounts shall be payable for the retroactive period but only if the Affected Party provides its written demand not later than 180 days after such Regulatory Change; or (2) the Affected Party reasonably and in good faith did not believe such Regulatory Change resulted in such an additional or increased cost or charge or such a reduction during such prior period.
(b) Each Affected Party will promptly notify the Seller, (or the Administrative Agent and the or a Purchaser Agent for the Purchaser Group of such Affected Partyon its behalf), if applicable, shall use commercially reasonable efforts to notify Seller and Administrative Agent of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, provided that no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (it, in its reasonable discretion) , shall deem applicable. Any Affected Party (or the Administrative Agent or a Purchaser Agent on its behalf) when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to and Administrative Agent a written statement of such increased cost or reduced return (including calculation thereof in reasonable detail)return, which statement shallstatement, in the absence of demonstrable manifest error, shall be conclusive and binding upon the Seller.
(d) For Except as set forth in clause (a) above, failure or delay on the avoidance part of doubt, (w) any interpretation of FAS 166 or FAS 167 Affected Party (or any successor Accounting Standards Codification SubtopicAdministrative Agent or a Purchaser Agent) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case to demand compensation pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.24.2 shall not constitute a waiver of such Affected Party’s (or the Administrative Agent’s or a Purchaser Agent’s on its behalf) right to demand such compensation.
Appears in 2 contracts
Samples: Omnibus Amendment (CHS Inc), Receivables Purchase Agreement (CHS Inc)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange occurring after the date hereof:
(Ai) shall subject an Affected Party to any TaxTax (other than Excluded Taxes), duty or other charge with respect to the portion of the Asset Interest owned by its obligations hereunder or funded by itunder any Funding Agreement or Enhancement Agreement, as applicable, its Commitment or any obligations or right to make Purchases or Reinvestments or to provide funding thereforits Liquidity Commitment, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs or Earned Discount owned byObligations, owed to or funded or maintained in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it its Obligations or, as applicable, its Commitment or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding thereforLiquidity Commitment; or
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount)reserve, special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected PartyParty pursuant to this Agreement, a Funding Agreement or an Enhancement Agreement, as applicable; or
(Ciii) shall change affect the amount of capital maintained or required or requested or directed expected to be maintained by any Affected Party; or
(Div) shall impose any other condition affecting any Asset Interest owned obligation owned, funded or funded maintained in whole or in part by any Affected Party, or its obligations rights or rightsobligations, if any, to make Purchases Loans or Reinvestments Liquidity Fundings or to provide (or participate in) the funding thereforor maintenance thereof; or
(Ev) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, assesses deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.:
Appears in 2 contracts
Samples: Credit and Security Agreement (Boston Scientific Corp), Credit and Security Agreement (Boston Scientific Corp)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange occurring after the date hereof:
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset any Undivided Interest owned by or funded by it, it or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Purchaser's Investments or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset any Undivided Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for changes in the rate of tax on the overall net income of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Undivided Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation impose on any Affected Party any other expense (or a successor thereto) assesses, deposit insurance premiums or similar chargesincluding attorneys' fees and litigation costs); and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.:
Appears in 2 contracts
Samples: Transfer and Administration Agreement (Wackenhut Corp), Transfer and Administration Agreement (Wackenhut Corp)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:Change occurring after the date hereof
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the any Asset Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Capital or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for franchise taxes or changes in the rate of tax on the overall net income of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount)special deposit, special deposit compulsory loan or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party, but excluding any reserve, special deposit or similar requirement included in the determination of Earned Discount; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.is
Appears in 2 contracts
Samples: Receivables Purchase Agreement (D & K Healthcare Resources Inc), Receivables Purchase Agreement (D & K Healthcare Resources Inc)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:Change occurring after the date hereof
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset Interest any Collateral owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding thereforFundings, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs principal or Earned Discount interest owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement or any other Related Document in respect of the portion of the Asset Interest Collateral owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding thereforFundings (except for changes in the rate of tax on the overall net income of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discountthe Interest Rate), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board to be an affiliateAffiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or;
(D) shall impose any other condition affecting any Asset Interest Collateral owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments Fundings or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Warehouse Loan and Security Agreement (Financial Pacific Co)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:
Change occurring after the date hereof (Aw) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset Purchased Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, part thereof or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Purchased Interest or Earned Discount interest thereon owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset any Purchased Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for changes in the rate of tax on the overall net income of such Affected Party imposed by the United States of America, by the jurisdiction (including the foreign jurisdiction) in which such Affected Party is incorporated, organized, managed, controlled or is considered to have its principal executive office and by the jurisdiction where such Affected Party is acting for the purposes of this Agreement; or
or (Bx) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discountinterest), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
or (Cy) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
or (Dz) shall impose any other condition affecting any Asset Purchased Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or rights to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
be (A) to increase the cost to (or in the case of Regulation D referred to above, to impose a cost on on) (1I) an Affected Party funding or making or maintaining any Purchases or Reinvestmentsinvestment in the Purchased Interest, any purchases, reinvestmentsreinvestment, or loans or other extensions of credit under any Liquidity the Stand-by Purchase Agreement, or any Credit Advance, or any commitment of to such Affected Party with respect to any of the foregoing, or (2II) any the Agent for continuing its or the Seller’s HSB's relationship with any Investor,
the Company, (B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or the Xxxxxx Certificate, or under any Liquidity Agreementthe Stand-by Purchase Agreement or the Enhancement Agreement with respect thereto, or
or (C) in the reasonable sole determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days subject to compliance with subsection (c) below, at the time specified in the next sentence, after written demand by such Affected Party (which demand shall be accompanied by a certificate statement setting forth, in reasonable detailforth the basis for such demand) shall have been delivered to SPS and the Agent, the basis Servicer shall pay, but solely from the Purchased Percentage of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected PartyFinance Charge Collections available therefor pursuant to Section 4.6(a)(viii), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such funds in accordance with Section 4.6(a)(viii). Amounts payable to any Affected Party for such additional or increased cost or such reduction.
(bhereunder shall be paid from the Purchased Percentage of Finance Charge Collections available therefor pursuant to Section 4.6(a)(viii) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of to such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline if such written demand has been made on or directive under or issued in connection with before the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless last Business Day of the date enactedcalendar month in which such amount arose, adopted or issued, or on the first Remittance Date occurring in the immediately succeeding calendar month and (y) any requestif such demand is made after the last Business Day in the calendar month in which such amount arose, ruleon the Remittance Date occurring in the immediately succeeding calendar month after the month in which the demand was made. It shall be understood and agreed that no demand may be satisfied from funds other than from the Purchased Percentage of Finance Charge Collections available therefor pursuant to Section 4.6(a)(viii) in accordance with the terms of this Agreement. In no case shall the right to make such demand be, guideline or directive promulgated by the Bank for International Settlementsbe deemed to be, a separate claim against HSB, SPS, the Basel Committee on Banking Supervision (Limited Guarantor or any successor Affiliate of any of them or similar authority) against any of their respective officers, directors, stockholders, employees or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each agents and any such case, constitute an adoption, change, request or directive subject to this Section 4.2right is herewith expressly waived.
Appears in 1 contract
Samples: Credit Card Receivables Purchase Agreement (SPS Transaction Services Inc)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange occurring or implemented after the Prior Closing Date or, without limiting the generality of the foregoing, any Specified Regulation:
(Ai) shall subject an Affected Party to any Taxtax, duty or other charge (other than an Excluded Tax) with respect to the portion of the any Asset Interest owned by owned, maintained or funded by itit (or its participation in any of the forgoing), or any obligations or right to make Purchases or Reinvestments or to provide funding thereforor maintenance therefor (or its participation in any of the foregoing), or shall change the basis of taxation of payments to the Affected Party or other Indemnified Party of any portion of the Invested Amount, CP Costs Purchasers’ Total Investment or Earned Discount Yield owned by, owed to to, funded or funded maintained in whole or in part by it (or its participation in any of the foregoing) or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by owned, maintained or funded by it or its obligations or rights, if any, to make or participate in Purchases or Reinvestments or to provide funding therefor; ortherefor or the maintenance thereof;
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount)reserve, special deposit or similar requirement against assets of any Affected Party or any other Indemnified Party, deposits or obligations with or for the account of any Affected Party or any other Indemnified Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board or other Governmental Authority to be an affiliate) of any Affected Party or any other Indemnified Party, or credit extended by any Affected Party or any other Indemnified Party; or;
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(Diii) shall impose any other condition affecting any Asset Interest owned owned, maintained or funded (or participated in) in whole or in part by any Affected Party or any other Indemnified Party, or its obligations or rights, if any, 34 Mylan to make (or participate in) Purchases or Reinvestments or to provide (or to participate in) funding therefor; ortherefor or the maintenance thereof;
(Eiv) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, or similar Person assesses deposit insurance premiums or similar chargescharges which an Affected Party is obligated to pay; or
(v) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party or any other Indemnified Party; and the result of any of the foregoing is or would be, in each case, as determined by the Agent, any Purchaser Agent or the applicable Affected Party:
(A) to increase the cost to (or to impose a cost on on) (1) an Affected Party or Indemnified Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, any Enhancement Agreement or any commitment (hereunder or under any Liquidity Agreement or any Enhancement Agreement) of such Affected Party or Indemnified Party with respect to any of the foregoing, or (2) any an Agent for continuing its or the Seller’s relationship with any InvestorPurchaser or any LOC Issuer,
(B) to reduce the amount of any sum received or receivable by an Affected Party or Indemnified Party under this Agreement, any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement) with respect thereto, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an such Affected Party or Indemnified Party as a consequence of its obligations hereunder hereunder, under any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement), including its funding or maintenance of any portion of the Asset Interest, or arising in connection herewith (or therewith) to a level below that which such Affected Party or Indemnified Party could otherwise have achievedachieved hereunder or thereunder, then, then within thirty days after ten (10) Business Days following demand by such Affected Party or Indemnified Party or Agent on its behalf (which demand shall be accompanied or such later date as specified in writing by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party, Indemnified Party or Agent, as applicable), the Seller shall pay directly to such Affected Party or Indemnified Party such additional amount or amounts as will compensate such Affected Party or Indemnified Party for such additional or increased cost or such reduction.. 35 Mylan
(b) Each Affected Party will or Indemnified Party, as applicable, shall promptly notify the Seller, the Administrative Seller and Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party or Indemnified Party to compensation pursuant to this Section 4.2; provided, however, no provided that failure to give or delay in giving such notification shall adversely affect on the rights part of any Affected Party or Indemnified Party to demand compensation pursuant to this Section 4.2 shall not constitute a waiver of such Affected Party’s or Indemnified Party’s right to demand such compensation; provided further that Seller shall not be required to compensate an Affected Party or Indemnified Party pursuant to this Section 4.2 for any increased costs or reductions incurred more than 135 days prior to the date that such Affected Party or Indemnified Party, as the case may be, notifies Seller and Agent of the Regulatory Change giving rise to such compensationincreased costs or reductions and of such Affected Party’s or Indemnified Party’s intention to claim compensation therefor; provided further that, if the Regulatory Change giving rise to such increased costs or reductions is retroactive, then the 135-day period referred to above shall be extended to include the period of retroactive effect thereof.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (it, in its reasonable sole discretion) , shall deem applicable. Any Affected Party or Indemnified Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to a statement of such increased cost or reduced return (including calculation thereof in reasonable detail)return, which statement shallstatement, in the absence of demonstrable manifest error, shall be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Yield Protection. (a) If any Regulatory Change (including a change to Regulation D under the Securities Exchange Act of 1933, as amended):
(i) Regulation D or (ii) any Regulatory Change:
(A) shall subject an any Affected Party to any Taxtax, duty or other charge with respect to the any portion of the Asset Interest Obligations owned by or funded by itit or with respect to its unused "Commitment" under the Program Support Agreement, as applicable (the "Unused Commitment") (other than taxes, duties or any obligations charges based on income or right to make Purchases or Reinvestments or to provide funding thereforgross receipts), or shall change the basis of taxation (other than taxes based on income or gross receipts) of payments to the Affected Party of any portion of yield on or reductions to the Invested Amount, CP Costs or Earned Discount owned by, Obligations owed to or with respect to the Obligations funded in whole or in part by it or any other amounts due under this Agreement in respect of the any portion of the Asset Interest Obligations owned by or funded by it or its obligations or rights, if any, to make fund Note Purchases or Reinvestments in respect of its Unused Commitment (except for changes in the rate of tax on the overall net income or to provide funding therefor; orgross receipts of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located);
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any an Affected Party, or credit extended by to any Affected Party; or;
(Ciii) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or;
(Div) shall impose any other condition or expense affecting any Asset Interest portion of the Obligations owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments pay any portion of the Unused Commitment or to provide funding therefor; or
(Ev) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a any successor thereto) assesses, assesses deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be:
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases portion of the Obligations, or Reinvestments, any purchases, reinvestments, reinvestments or loans or other extensions of credit under the Program Support Agreement or any Liquidity Agreement, Transaction Document or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,;
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement, or under the Program Support Agreement or under any Liquidity Agreement, Transaction Document with respect thereto; or
(C) in the reasonable sole determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of 40 its obligations hereunder or under the Program Support Agreement or arising in connection herewith to a level below that which such the Affected Party could otherwise have achieved, then, ; then within thirty 30 days after demand by such Affected Party (which demand shall be accompanied by a certificate statement setting forth, forth in reasonable detail, detail the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Partydemand), the Seller Borrower shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction; provided such additional amount or amounts shall not be payable with respect to any period in excess of 180 days prior to the date of demand by the Affected Party unless (1) the effect of the Regulatory Change is retroactive by its terms to a period prior to the date of the Regulatory Change, in which case any additional amount or amounts shall be payable for the retroactive period but only if the Affected Party provides its written demand not later than 180 days after the Regulatory Change; or (2) the Affected Party reasonably and in good faith did not believe the Regulatory Change resulted in such an additional or increased cost or such a reduction during such prior period.
(b) Each Affected Party will promptly notify the SellerBorrower, the Trustee and the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has actual knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to any compensation pursuant to this Section 4.2Section; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2Section, an Affected Party may use any reasonable averaging and or attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretionsole discretion exercised in good faith) shall deem applicableapplicable and which it applies on a consistent basis. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller Borrower and the certificate (referred to in subsection (a) above) Administrative Agent a statement as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable manifest error, be conclusive and binding upon the SellerBorrower and the Administrative Agent.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Warehouse Note Purchase and Security Agreement (Nelnet Inc)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange occurring after the date hereof:
(Aa) shall subject an Affected Party to any Tax, duty or other charge with respect to the portion of the Asset Interest owned by its Obligations or, as applicable, its Commitment or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding thereforits Liquidity Commitment, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs or Earned Discount owned byObligations, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it its Obligations or, as applicable, its Commitment or its obligations Liquidity Commitment except for (1) Taxes based on, or rightsmeasured by, net income or net profits, or changes in the rate of Tax on or determined by reference to the overall net income or net profits, of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office and/or its applicable lending office is located and, if anysuch Affected Party's principal executive office or its applicable lending office is not in the United States of America, by the jurisdiction where such Affected Party's principal office or applicable lending office is located, (2) franchise Taxes, Taxes on, or in the nature of, doing business Taxes or capital Taxes, or (3) withholding Taxes required for payments made to make Purchases any foreign entity (other than withholding Taxes imposed by the United States as a result of a change in law after the date hereof and before such foreign entity issues its Commitment or Reinvestments Liquidity Commitment or becomes an assignee of a Lender hereunder), unless such foreign entity fails to provide funding therefordeliver to the Administrative Agent and the Borrower an accurate IRS Form 1001 or 4224 (or the applicable successor form), as applicable; or
(Bb) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve that was not included in the determination computation of Earned Discount)the applicable Interest Rate, or any special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(Cc) shall change affect the amount of capital maintained or required or requested or directed expected to be maintained by any Affected Party; or
(Dd) shall impose any other condition affecting any Asset Interest Obligation owned or funded in whole or in part by any Affected Party, or its obligations rights or rightsobligations, if any, to make Purchases Loans or Reinvestments or to provide funding thereforLiquidity Fundings; or
(Ee) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, assesses deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.:
Appears in 1 contract
Samples: Credit and Security Agreement (Quest Diagnostics Inc)
Yield Protection. (a) If (i) If, after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, including Regulation D of the Board of Governors of the Federal Reserve System, 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 Secondary Purchaser or any Person controlling any Secondary Purchaser, or any permitted assignee under this Agreement (iieach of which being an “Affected Party”) with any Regulatory Change:request or directive of any such authority, central bank or comparable agency or any change in the application of GAAP (in any case, whether or not having the force of law,
(A) shall subject an Affected Party to any Taxtax (except for taxes on the overall net income of such Affected Party), duty or other charge with respect to the portion of the Asset Interest owned by or funded by it, Receivable Interests or any obligations or right to make Purchases or Reinvestments or to provide funding thereforpurchases, or shall change the basis of taxation of payments to the an Affected Party of any portion of the Invested Amount, CP Costs its Capital or Earned Discount owned by, owed to or funded in whole or in part by it Yield or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it its Capital or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding thereforpurchases; or
(B) shall impose, modify or deem applicable any reserve requirement (including, without limitation, any reserve requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding any reserve requirement, if any, included in the determination of Earned DiscountYield), special deposit or similar requirement against assets of any Affected Partyof, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Partyof, or credit extended by by, any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned the Receivable Interests or funded in whole or in part by any Affected Party, or its obligations or the Secondary Purchaser’s rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar chargespurchases; and the result of any of the foregoing is or would be
(Ai) to increase the cost to, or, in the case of Regulation D referred to or above, to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoingReceivable Interest, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(Bii) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreementwith respect thereto, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, then within thirty ten days after demand by such Affected Party (which demand shall be accompanied by a certificate statement setting forth, in reasonable detail, forth the basis of for such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Partydemand), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost incurred or such reduction suffered.
(b) If an Affected Party shall reasonably determine that the adoption of any applicable law, rule, regulation, directive or guideline regarding capital adequacy, or any change in or phase-in of any applicable law, rule, regulation, directive or guideline 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 an Affected Party with any request or directive regarding capital adequacy of any such authority, central bank or comparable agency or any change in the application of GAAP (in any case, whether or not having the force of law, has or would have the effect of reducing the rate of return on the capital of any Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which any such Affected Party could have achieved but for such adoption, change or compliance (taking into consideration the policies of such Affected Party with respect to capital adequacy) by an amount deemed by such Affected Party to be material, then from time to time, within ten days after demand by such Affected Party, the Seller shall pay to such Affected Party such additional amount or amounts as will compensate such Affected Party for such reduction.
(bc) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, Seller of any event of which it has knowledge (including any future event that, in occurring after the judgment of such Affected Party, is reasonably certain to occur) date hereof which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure 2.08. If an Affected Party fails to give or delay in giving such notification shall adversely affect the rights notice within 90 days after it obtains actual knowledge of any such event and such result, such Affected Party shall be entitled to compensation pursuant to this Section 2.08 only to the extent such compensationadditional amount or reduction accrues on or after the date 90 days prior to the date on which such Affected Party gives such notice.
(cd) In determining any amount provided for or referred to in this Section 4.22.08, an the Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicablemethods. Any Affected Party when making a claim under this Section 4.2 2.08 shall submit to the Seller the a certificate (referred to in subsection (a) above) as to such additional or increased cost or reduced return (including calculation thereof in reasonable detail)reduction, which statement shall, in the absence of certificate shall be conclusive absent demonstrable error; provided, be conclusive and binding upon that the Sellerfailure to deliver any such certificate shall not affect the Affected Party’s right to payment hereunder unless notice as required by Section 2.08(c) has not been given.
(de) For If the avoidance Seller shall become obligated to pay amounts under this Section 2.08 to any Affected Party, and the Seller shall not then be obligated to pay amounts under this Section 2.08 to Affected Parties with respect to all of doubtthe Secondary Purchasers, the Seller shall have the right to require such Affected Party (or the Purchaser through whom such Affected Party has made such claim) to sell and assign, and within 60 days of the Seller’s request to such effect, such Affected Party or Secondary Purchaser, as the case may be, shall sell and assign, all of its interests, rights and obligations under this Agreement to an Assignee (but no Assignee shall have any obligation to make any such purchase) or to an assignee identified by the Seller and approved by the Administrative Agent and the Related Purchaser, which approval shall not be unreasonably withheld; provided, however, that (i) such assignment shall not conflict with any statute, law, rule, regulation, order or decree of any governmental authority, (wii) the assigning Affected Party shall have received from such Assignee or such assignee full payment in immediately available funds of all amounts payable to it in respect of Capital, accrued Yield and fees and other amounts owing to it under or in connection with this Agreement and the other Sale Documents, (iii) the assigning Affected Party shall have been released of any interpretation of FAS 166 and all liabilities and obligations under this Agreement, (iv) such assignment shall be without representation or FAS 167 warranty (or any successor Accounting Standards Codification Subtopicexcept to the extent set forth in the related Assignment) by the Financial Accounting Standards Board assigning Affected Party and any pronouncement, interpretation or release by shall be at the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless sole expense of the date enacted, adopted or issued, or Seller and (yv) any request, rule, guideline or directive promulgated by the Bank for International Settlements, assigning Affected Party shall continue to have the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless benefit of all indemnities and other agreements under this Agreement which survive the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to termination of this Section 4.2Agreement.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Georgia Pacific Corp)
Yield Protection. (a) If any Change in Law: (i) Regulation D or (ii) any Regulatory Change:
(A) shall subject an Affected Party Person to any Taxduty, duty cost or other charge (other than Taxes, which shall be governed by Section 4.03) with respect to the portion of the Asset Interest owned by any Loan owned, maintained or funded by itit (or its participation in any of the forgoing), or any obligations or right to make Purchases or Reinvestments Loans or to provide funding thereforor maintenance therefor (or its participation in any of the foregoing); (ii) shall impose, modify, or shall change the basis of taxation of payments to the Affected Party deem applicable any reserve, special deposit, or similar requirement against assets of any portion Affected Person, deposits, or obligations with or for the account of any Affected Person or with or for the Invested Amountaccount of any Affiliate (or entity deemed by the Federal Reserve Board or other Governmental Authority to be an affiliate) of any Affected Person, CP Costs or Earned Discount owned bycredit extended by any Affected Person; (iii) shall impose any other condition affecting any Loan owned, owed to maintained, or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it Affected Person, or its obligations or rights, if any, to make Purchases (or Reinvestments participate in) Loans or to provide (or participate in) funding therefortherefor or the maintenance thereof; or
(Biv) shall imposechange the rate for, modify or deem applicable any reserve (including, without limitation, any reserve imposed by changes the manner in which the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit Deposit Insurance Corporation (or a successor thereto) or similar requirement against assets of any Affected PartyPerson assesses, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Partydeposit insurance premiums, or credit extended by any similar charges which an Affected PartyPerson is obligated to pay; or
or (Cv) shall (i) change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
Person or (Dii) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by subject any Affected PartyPerson to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (iii) through (iv) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its Loans, the Receivable Pool or Related Assets, commitments, or other obligations, or its obligations or rightsdeposits, if anyreserves, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate forother liabilities, or the manner in which the Federal Deposit Insurance Corporation (or a successor capital attributable thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
, in each case, as determined by the applicable Group Agent or the applicable Affected Person: (A) to increase the cost to (or to impose a cost on on)
(1) an Affected Party Person funding or making or maintaining any Purchases or ReinvestmentsLoans, any corresponding purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, any Enhancement Agreement, or any commitment (hereunder or under any Liquidity Agreement or any Enhancement Agreement) of such Affected Party Person with respect to any of the foregoing, or (2) the Collateral 751499193.15 22727329 63 Agent, any Group Agent, or the Administrative Agent for continuing its or the Seller’s relationship with any Investor,
Lender in such capacities hereunder; (B) to reduce the amount of any sum received or receivable by an Affected Party Person under this Agreement Agreement, or any corresponding amount received or receivable under any Liquidity Agreement or any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement, or
) with respect thereto; or (C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an such Affected Party Person as a consequence of its obligations hereunder hereunder, any corresponding obligations under any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement), including its funding or maintenance of any portion of any Principal, or arising in connection herewith (or therewith) to a level below that which such Affected Party Person could otherwise have achievedachieved hereunder or thereunder, then, within thirty days after demand the Borrower shall pay to the Payment Account by the date that is no later than three (3) Business Days prior to the Settlement Date following the Settlement Period in which it receives notice of the related claim from such Affected Party Person (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed or by the Affected Party), the Seller shall pay directly Administrative Agent or a Group Agent on its behalf) for payment to such Affected Party Person on such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reductionSettlement Date in accordance with Section 4.01(c).
(b) Each Affected Party will Person (or the Administrative Agent or a Group Agent on its behalf), shall use commercially reasonable efforts to promptly notify the Seller, Servicer (on behalf of the Borrower) and the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has actual knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party Person to compensation pursuant to this Section 4.24.01; provided, however, no failure that the Borrower shall not be required to give or delay in giving such notification shall adversely affect the rights of any compensate an Affected Party Person pursuant to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use 4.01 for any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit increased costs or reductions incurred more than 180 days prior to the Seller date that such Affected Person notifies the certificate (referred to Borrower of the Change in subsection (a) above) as Law giving rise to such increased cost costs or reduced return (including calculation thereof reductions and of such Affected Person’s intention to claim compensation therefor; provided, further, that, if the Change in reasonable detail)Law giving rise to such increased costs or reductions is retroactive, which statement shall, in then the absence 180 day period referred to above shall be extended to include the period of demonstrable error, be conclusive and binding upon the Sellerretroactive effect thereof.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange in Law:
(Ai) shall subject an Affected Party to any Tax, duty or other charge (other than Taxes, which shall be governed by Section 3.3(e)) with respect to the portion of the any Investment or interest in any Asset Interest owned by Portfolio owned, maintained or funded by itit (or its participation in any of the forgoing), or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of maintenance therefor (or its participation in any portion of the Invested Amount, CP Costs or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; orforegoing);
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount)reserve, special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board or other Governmental Authority to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or;
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(Diii) shall impose any other condition affecting any Investment or any Asset Interest owned Portfolio owned, maintained or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make (or participate in) Purchases or Reinvestments or to provide (or participate in) funding therefor; ortherefor or the maintenance thereof;
(Eiv) shall change the rate for, or changes the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) or similar Person assesses, deposit insurance premiums or similar chargescharges which an Affected Party is obligated to pay; or
(v) shall (i) change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party or (ii) subject any Affected Party to any Taxes (other than (A) Indemnified Taxes and (B) Excluded Taxes) on its Purchases, Asset Portfolios, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; and the result of any of the foregoing is or would be, in each case, as determined by the applicable Purchaser Agent or the applicable Affected Party:
(A) to increase the cost to (or to impose a cost on on) (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, any Enhancement Agreement or any commitment (hereunder or under any Liquidity Agreement or any Enhancement Agreement) of such Affected Party with respect to any of the foregoing, or (2) the Collateral Agent, any Purchaser Agent or any Administrative Agent for continuing its or the Seller’s relationship with any Investor,Purchaser;
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement, any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement, ) with respect thereto; or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an such Affected Party as a consequence of its obligations hereunder hereunder, under any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement), including its funding or maintenance of any portion of any Investment or any Asset Portfolio, or arising in connection herewith (or therewith) to a level below that which such Affected Party could otherwise have achievedachieved hereunder or thereunder, then, subject to Section 4.2(d) below, on the Settlement Date (or during the Liquidation Period or after the occurrence of an Event of Termination, Collection Control Event or Non-Reinvestment Event that remains continuing, within thirty days after demand by two (2) Business Days) following its receipt of notice from such Affected Party (which demand shall be accompanied or by an Administrative Agent or a certificate setting forth, Purchaser Agent on its behalf) in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Partyaccordance with Section 4.2(c), the Seller Sellers shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will (or an Administrative Agent or a Purchaser Agent on its behalf), shall promptly notify the Seller, Servicer (on behalf of the Sellers) and each Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, that no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation; provided that the Sellers shall not be required to compensate an Affected Party for any increased costs or reductions incurred more than six months prior to the date that such Affected Party notifies the Sellers of such event giving rise to such increased costs or reductions and of such Affected Party’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (it, in its reasonable sole discretion) , shall deem applicable. Any Affected Party (or an Administrative Agent or a Purchaser Agent on its behalf) when making a claim under this Section 4.2 shall submit to the Seller Servicer (on behalf of the certificate (referred to in subsection (aSellers) above) as to and the Administrative Agents a written statement of such increased cost or reduced return (including calculation thereof in reasonable detail)return, which statement shallstatement, in the absence of demonstrable manifest error, shall be conclusive and binding upon so long as it reflects a reasonable basis for the Sellercalculation of the amounts set forth therein.
(d) For Failure or delay on the avoidance part of doubt, (w) any interpretation of FAS 166 or FAS 167 Affected Party (or any successor Accounting Standards Codification SubtopicAdministrative Agent or any Purchaser Agent) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or to demand compensation pursuant to this Section 4.2 shall not having the force constitute a waiver of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision such Affected Party’s (or any successor Administrative Agent’s or similar authorityany Purchaser Agent’s on its behalf) right to demand such compensation; provided that the Sellers shall not be required to compensate an Affected Party for any increased costs or United States regulatory authorities, in each case pursuant reductions incurred more than six months prior to Basel III, regardless the date that such Affected Party notifies the Sellers of the date enactedevent giving rise to such increased costs or reductions and of such Affected Party’s intention to claim compensation therefor; provided further that, adopted if the Change in Law giving rise to such increased costs or issuedreductions is retroactive, shallthen the six-month period referred to above shall be extended to include the period of retroactive effect thereof.
(e) Notwithstanding anything to the contrary set forth in this Agreement, in each such case, constitute an adoption, change, request or directive subject Sellers shall not be liable to any member of any Purchaser Group for any amounts under this Section 4.24.2 caused by delivery of a Delayed Purchase Notification by any member of such Purchaser Group.
Appears in 1 contract
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:Change occurring after the date hereof
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset Interest owned by its Obligations or, as applicable, its Commitment or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding thereforits Liquidity Commitment, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs or Earned Discount owned by, Obligations owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it its Obligations or, as applicable, its Commitment or its obligations Liquidity Commitment, except for (1) taxes based on, or rightsmeasured by, net income, or changes in the rate of tax on or determined by reference to the overall net income, of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located and, if anysuch Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located, (2) franchise taxes, taxes on, or in the nature of, doing business taxes or capital taxes, or (3) withholding taxes required for payments made to make Purchases any foreign entity which, at the time such foreign entity issues its Commitment or Reinvestments Liquidity Commitment or becomes an assignee of a Lender hereunder, fails to provide funding therefordeliver to the applicable Co-Agent and the Borrower an accurate IRS Form W-8BEN or W-8ECI (or the applicable successor forms), as applicable; or
(B) shall impose, modify or deem applicable any reserve that was not included in the computation of the applicable Interest Rate (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned Obligation owed or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases Loans or Reinvestments or to provide funding thereforLiquidity Fundings; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Credit and Security Agreement (Lanier Worldwide Inc)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:
(A) shall subject an Affected Party to any Tax, duty or other charge with respect to the portion of the Asset Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, Board shall constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Lennox International Inc)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange occurring after the Original Closing Date:
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset Interest owned by or funded by it, or any obligations or right to make Purchases Transfers or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the such Affected Party of any portion of the Invested AmountTransferee's Total Investment, CP Costs or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases Transfers or Reinvestments or to provide funding therefortherefor (except for (1) taxes based on, or measured by, net income, or changes in the rate of tax on or determined by reference to the overall net income, of such Affected Party, in each case, imposed by any jurisdiction in which the overall net income of such Affected Party is subject to taxation on the date hereof or the date on which such Affected Party becomes a party hereto or acquires an interest hereunder, as applicable or, (2) franchise taxes, taxes on, or in the nature of, doing business taxes or capital taxes); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit deposit, insurance assessment or similar requirement against assets of any Affected PartyParty in respect of the assets which are of the type constituting the Asset Interest, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected PartyParty in respect of its assets which are of the type constituting the Asset Interest; or
(D) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases Transfers or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(Ax) to increase the cost to to, or to impose a cost on on, (1) an Affected Party funding or making or maintaining any Purchases Transfers or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any the Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent the Administrator for continuing its or the Seller’s Transferor's relationship with any InvestorTransferee, in each case, in an amount deemed to be material by such Affected Party,
(By) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any the Liquidity Agreement, or
(Cz) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty (30) days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in such reasonable detaildetail as shall reasonably be requested by Transferor, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller Transferor shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Asset Interest Transfer Agreement (Westpoint Stevens Inc)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange occurring after June 19, 2000:
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Amount or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for (1) taxes based on, or measured by, net income, or changes in the rate of tax on or determined by reference to the overall net income, of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located or, (2) franchise taxes, taxes on, or in the nature of, doing business taxes or capital taxes); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s 's relationship with any InvestorPurchaser, in each case, in an amount deemed to be material by such Affected Party,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction; provided, however, the Seller shall only be required to compensate any such Affected Party for such amounts to the extent that such Affected Party is requiring all of its other similarly situated customers to compensate it for such amounts.
(b) Each Affected Party will promptly notify the Seller, the Administrative Seller and each Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) Research Bulletin No. 51 by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, shall constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Lennox International Inc)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:
Change occurring after the date hereof (A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the any Asset Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Purchaser's Total Investments or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding thereforthere for (except for changes in the rate of tax on the overall net income of such Affected Party imposed by the United States of America or any state thereof (unless, with respect to a state, other than the state in which such Affected Party's chief executive offices are located, resulting from, or arising out of, the transactions contemplated under the Transaction Documents) and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located); or
or (B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
or (C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
or (E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
be (Ax) to increase the cost to (or in the case of Regulation D referred to above, to impose a cost on on) (1I) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any the Liquidity Agreement, Agreement or any commitment of such Affected Party with respect to any of the foregoing, or (2II) any the Agent for continuing its or Seller's or the Seller’s Originator's relationship with any Investor,
Purchaser (BSeller shall at no time, with regard to Regulation D, be required to pay an increased cost hereunder in excess of the actual increased cost imposed on the Affected Party), (y) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any the Liquidity AgreementAgreement with respect thereto, or
or (Cz) in the reasonable sole determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, then within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate statement setting forth, in reasonable detail, forth the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Partydemand), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent Seller and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.24.02; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.no
(c) In determining any amount provided for or referred to in this Section 4.24.02, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable sole discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 4.02 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.submit
Appears in 1 contract
Samples: Receivables Purchase Agreement (Transfinancial Holdings Inc)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange occurring after the date hereof:
(Aa) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset Interest owned by its Obligations or, as applicable, its Commitment or funded by it, or its commitment under any obligations or right to make Purchases or Reinvestments or to provide funding thereforLiquidity Agreement, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs or Earned Discount owned byObligations, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it its Obligations or, as applicable, its Commitment or its obligations commitment under any Liquidity Agreement except for (1) taxes based on, or rightsmeasured by, net income, or changes in the rate of tax on or determined by reference to the overall net income, of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located and, if anysuch Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located, (2) franchise taxes, taxes on, or in the nature of, doing business taxes or capital taxes, or (3) withholding taxes required for payments made to make Purchases any foreign entity which, at the time such foreign entity issues its Commitment or Reinvestments Liquidity Commitment or becomes an assignee of a Lender hereunder, fails to provide funding therefordeliver to the applicable Co-Agent and the Borrower an accurate IRS Form 1001 or 4224, as applicable; or
(Bb) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discountinterest), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(Cc) shall change affect the amount of capital maintained or required or requested or directed expected to be maintained by any Affected Party; or
(Dd) shall impose any other condition affecting any Asset Interest Obligation owned or funded in whole or in part by any Affected Party, or its obligations rights or rightsobligations, if any, to make Purchases Loans or Reinvestments or to provide funding thereforLiquidity Fundings; or
(Ee) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, assesses deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.:
Appears in 1 contract
Samples: Credit and Security Agreement (Interim Services Inc)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:Change occurring after the date hereof
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset Interest or any Asset Tranche owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested AmountPurchaser's Total Investment, CP Costs Purchaser's Tranche Investment or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest or any Asset Tranche owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for Excluded Taxes); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange including any Specified Regulation:
(Ai) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the any Asset Interest owned by owned, maintained or funded by itit (or its participation in any of the foregoing), or any obligations or right to make Purchases or Reinvestments or to provide funding thereforor maintenance therefor (or its participation in any of the foregoing), or shall change the basis of taxation of payments to the Affected Party or other Indemnified Party of any portion of the Invested Amount, CP Costs Total Investment or Earned Discount Yield owned by, owed to to, funded or funded maintained in whole or in part by it (or its participation in any of the foregoing) or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by owned, maintained or funded by it or its obligations or rights, if any, to make or participate in Purchases or Reinvestments or to provide funding therefor; ortherefor or the maintenance thereof;
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount)reserve, special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board or other Governmental Authority to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or;
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(Diii) shall impose any other condition affecting any Asset Interest owned owned, maintained or funded (or participated in) in whole or in part by any Affected Party, or its obligations or rights, if any, to make (or participate in) Purchases or Reinvestments or to provide (or to participate in) funding therefor; ortherefor or the maintenance thereof;
(Eiv) shall change increase the rate for, or changes the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) or similar Person assesses, deposit insurance premiums or similar chargescharges which an Affected Party is obligated to pay; or
(v) shall increase the amount of capital or liquidity maintained or required or requested or directed to be maintained by any Affected Party; and the result of any of the foregoing is or would be, in each case, as determined by the applicable Purchaser Agent or the applicable Affected Party:
(A) to increase the cost to (or to impose a cost on on) (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, any Enhancement Agreement or any commitment (hereunder or under any Liquidity Agreement or any Enhancement Agreement) of such Affected Party with respect to any of the foregoing, or (2) any Purchaser Agent or Administrative Agent for continuing its or the Seller’s relationship with any Investor,Purchaser;
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement, any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement, or) with respect thereto; or 749037980
(C) in the reasonable determination of such Affected Party, (i) to reduce the rate of return on the capital of an such Affected Party as a consequence of its obligations hereunder hereunder, under any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement), including its funding or maintenance of any portion of the Asset Interest, or arising in connection herewith (or therewith) to a level below that which such Affected Party could otherwise have achievedachieved hereunder or thereunder or (ii) to increase the liquidity required of such Affected Party as a consequence of its obligations hereunder or under any Liquidity Agreement or any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement), including its funding or maintenance of any portion of the Asset Interest, or arising in connection herewith (or therewith) to a level greater than that which such Affected Party could otherwise have achieved hereunder or thereunder, then, subject to Section 4.2(d) below, on the Settlement Date (or during the Liquidation Period or after the occurrence of an Event of Default that has not been waived in accordance with the terms of this Agreement, within thirty days after demand by two (2) Business Days) following its receipt of notice from such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed or by the Affected Party)Administrative Agent or a Purchaser Agent on its behalf) in accordance with Section 4.2(c) below, the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reductionreduction or liquidity increase; provided that such additional amount or amounts shall not be payable with respect to any Regulatory Change for any period in excess of 180 days prior to the date of demand by the Affected Party unless (1) the effect of such Regulatory Change was retroactive by its terms to a period prior to the date of such Regulatory Change, in which case any additional amount or amounts shall be payable for the retroactive period but only if the Affected Party provides its written demand not later than 180 days after such Regulatory Change; or (2) the Affected Party reasonably and in good faith did not believe such Regulatory Change resulted in such an additional or increased cost or charge or such a reduction during such prior period.
(b) Each Affected Party will promptly notify the Seller, (or the Administrative Agent and the or a Purchaser Agent for the Purchaser Group of such Affected Partyon its behalf), if applicable, shall use commercially reasonable efforts to notify Seller and Administrative Agent of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, provided that no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (it, in its reasonable discretion) , shall deem applicable. Any Affected Party (or the Administrative Agent or a Purchaser Agent on its behalf) when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to and Administrative Agent a written statement of such increased cost or reduced return (including calculation thereof in reasonable detail)return, which statement shallstatement, in the absence of demonstrable manifest error, shall be conclusive and binding upon the Seller.
(d) For Except as set forth above in this Section 4.2, failure or delay on the avoidance part of doubt, (w) any interpretation of FAS 166 or FAS 167 Affected Party (or any successor Accounting Standards Codification SubtopicAdministrative Agent or a Purchaser Agent) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case to demand compensation pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.4.2 shall not constitute a waiver of such Affected Party’s (or the Administrative Agent’s or a Purchaser Agent’s on its behalf) right to demand such compensation. 749037980
Appears in 1 contract
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:
(Aa) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the its portion of the Asset Interest owned by Obligations or, as applicable, its Commitment or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding thereforits Liquidity Commitment, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs or Earned Discount owned byObligations, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the its portion of the Asset Interest owned by or funded by it Obligations or, as applicable, its Commitment or its obligations Liquidity Commitment except for (1) taxes based on, or rightsmeasured by, net income, or changes in the rate of tax on or determined by reference to the overall net income, of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located and, if anysuch Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located, (2) franchise taxes, taxes on, or in the nature of, doing business taxes or capital taxes, or (3) withholding taxes required for payments made to make Purchases any foreign entity which, at the time such foreign entity issues its Commitment or Reinvestments Liquidity Commitment or becomes an assignee of a Lender hereunder, fails to provide funding therefordeliver to the Agent and the Borrower an accurate IRS Form 1001 or 4224 (or successor form), as applicable; or
(Bb) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discountinterest), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(Cc) shall change affect the amount of capital maintained or required or requested or directed expected to be maintained by any Affected Party; or
(Dd) shall impose any other condition affecting any Asset Interest Obligation owned or funded in whole or in part by any Affected Party, or its obligations rights or rightsobligations, if any, to make Purchases Loans or Reinvestments or to provide funding thereforLiquidity Fundings; or
(Ee) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, assesses deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.:
Appears in 1 contract
Samples: Credit and Security Agreement (Precision Castparts Corp)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:Change occurring after the date hereof
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the any Asset Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Capital or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for franchise taxes or changes in the rate of tax on the net income of such Affected Party imposed by any jurisdiction); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit deposit, compulsory loan or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party, but excluding any reserve, special deposit or similar requirement included in the determination of Earned Discount; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would beis
(Ax) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Program Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(By) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement Agreement, or under any Liquidity AgreementProgram Agreement with respect thereto, or
(Cz) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or under any Program Agreement or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, then within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate statement setting forth, in reasonable detail, forth the basis of such demand and the methodology for calculatingfor, and the calculation of, the amounts claimed by the and amount of such additional costs or reduced amount receivable; provided, however, that no Affected PartyParty shall be required to disclose any confidential or tax planning information in any such statement), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction, but without duplication of any other similar additional amounts due under any other Program Agreement.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.24.02, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 4.02 shall submit to the Seller the certificate (referred to in subsection (a) above) a statement as to such increased cost or reduced return (including calculation thereof reasonable calculations and an explanation in reasonable detailconnection therewith), which statement shall, in the absence of demonstrable manifest error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange including any Specified Regulation:
(Ai) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the any Asset Interest owned by owned, maintained or funded by itit (or its participation in any of the foregoing), or any obligations or right to make Purchases or Reinvestments or to provide funding thereforor maintenance therefor (or its participation in any of the foregoing), or shall change the basis of taxation of payments to the Affected Party or other Indemnified Party of any portion of the Invested Amount, CP Costs Total Investment or Earned Discount Yield owned by, owed to to, funded or funded maintained in whole or in part by it (or its participation in any of the foregoing) or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by owned, maintained or funded by it or its obligations or rights, if any, to make or participate in Purchases or Reinvestments or to provide funding therefor; ortherefor or the maintenance thereof;
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount)reserve, special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board or other Governmental Authority to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or;
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(Diii) shall impose any other condition affecting any Asset Interest owned owned, maintained or funded (or participated in) in whole or in part by any Affected Party, or its obligations or rights, if any, to make (or participate in) Purchases or Reinvestments or to provide (or to participate in) funding therefor; ortherefor or the maintenance thereof;
(Eiv) shall change increase the rate for, or changes the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) or similar Person assesses, deposit insurance premiums or similar chargescharges which an Affected Party is obligated to pay; or
(v) shall increase the amount of capital or liquidity maintained or required or requested or directed to be maintained by any Affected Party; and the result of any of the foregoing is or would be, in each case, as determined by the applicable Purchaser Agent or the applicable Affected Party:
(A) to increase the cost to (or to impose a cost on on) (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, any Enhancement Agreement or any 753697831 commitment (hereunder or under any Liquidity Agreement or any Enhancement Agreement) of such Affected Party with respect to any of the foregoing, or (2) any Purchaser Agent or Administrative Agent for continuing its or the Seller’s relationship with any Investor,Purchaser;
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement, any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement, ) with respect thereto; or
(C) in the reasonable determination of such Affected Party, (i) to reduce the rate of return on the capital of an such Affected Party as a consequence of its obligations hereunder hereunder, under any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement), including its funding or maintenance of any portion of the Asset Interest, or arising in connection herewith (or therewith) to a level below that which such Affected Party could otherwise have achievedachieved hereunder or thereunder or (ii) to increase the liquidity required of such Affected Party as a consequence of its obligations hereunder or under any Liquidity Agreement or any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement), including its funding or maintenance of any portion of the Asset Interest, or arising in connection herewith (or therewith) to a level greater than that which such Affected Party could otherwise have achieved hereunder or thereunder, then, subject to Section 4.2(d) below, on the Settlement Date (or during the Liquidation Period or after the occurrence of an Event of Default that has not been waived in accordance with the terms of this Agreement, within thirty days after demand by two (2) Business Days) following its receipt of notice from such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed or by the Affected Party)Administrative Agent or a Purchaser Agent on its behalf) in accordance with Section 4.2(c) below, the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reductionreduction or liquidity increase; provided that such additional amount or amounts shall not be payable with respect to any Regulatory Change for any period in excess of 180 days prior to the date of demand by the Affected Party unless (1) the effect of such Regulatory Change was retroactive by its terms to a period prior to the date of such Regulatory Change, in which case any additional amount or amounts shall be payable for the retroactive period but only if the Affected Party provides its written demand not later than 180 days after such Regulatory Change; or (2) the Affected Party reasonably and in good faith did not believe such Regulatory Change resulted in such an additional or increased cost or charge or such a reduction during such prior period.
(b) Each Affected Party will promptly notify the Seller, (or the Administrative Agent and the or a Purchaser Agent for the Purchaser Group of such Affected Partyon its behalf), if applicable, shall use commercially reasonable efforts to notify Seller and Administrative Agent of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, provided that no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (it, in its reasonable discretion) , shall deem applicable. Any Affected Party (or the Administrative Agent or a Purchaser Agent on its behalf) when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to and Administrative 753697831 Agent a written statement of such increased cost or reduced return (including calculation thereof in reasonable detail)return, which statement shallstatement, in the absence of demonstrable manifest error, shall be conclusive and binding upon the Seller.
(d) For Except as set forth above in this Section 4.2, failure or delay on the avoidance part of doubt, (w) any interpretation of FAS 166 or FAS 167 Affected Party (or any successor Accounting Standards Codification SubtopicAdministrative Agent or a Purchaser Agent) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case to demand compensation pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.24.2 shall not constitute a waiver of such Affected Party’s (or the Administrative Agent’s or a Purchaser Agent’s on its behalf) right to demand such compensation.
Appears in 1 contract
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:Change occurring after the date hereof
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset Interest owned by or funded by it, or any obligations or right to make Purchases Transfers or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Transferee's Total Investments or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases Transfers or Reinvestments or to provide funding therefortherefor (except for (1) taxes based on, or measured by, net income, or changes in the rate of tax on or determined by reference to the overall net income, of such Affected Party, in each case, imposed by any jurisdiction in which the overall net income of such Affected Party is subject to taxation on the date hereof or the date on which such Affected Party becomes a party hereto or acquires an interest hereunder, as applicable or, (2) franchise taxes, taxes on, or in the nature of, doing business taxes or capital taxes); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit deposit, insurance assessment or similar requirement against assets of any Affected PartyParty in respect of the assets which are of the type constituting the Asset Interest, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected PartyParty in respect of its assets which are of the type constituting the Asset Interest; or
(D) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases Transfers or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Asset Interest Transfer Agreement (Westpoint Stevens Inc)
Yield Protection. (a) If (i) Regulation D or (ii) If any Regulatory ChangeChange occurring after the date hereof:
(A1) shall subject an Affected Party to any TaxTax (other than Excluded Taxes), duty or other charge with respect to the portion of the Asset Interest owned by its Obligations or, as applicable, its Outstanding Advance Amount or funded by it, its Liquidity Commitment or any obligations or right to make Purchases or Reinvestments or to provide funding thereforLiquidity Funding, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs or Earned Discount owned byObligations, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it its Obligations or, as applicable, its Outstanding Advance Amount or its obligations Liquidity Commitment or rights, if any, to make Purchases or Reinvestments or to provide funding thereforLiquidity Funding; or
(B2) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve that was not included in the determination computation of Earned Discount)the applicable Interest Rate, or any special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C3) shall change affect the amount of capital maintained or required or requested or directed expected to be maintained by any Affected Party; or
(D4) shall impose any other condition affecting any Asset Interest Obligation owned or funded in whole or in part by any Affected Party, or its obligations rights or rightsobligations, if any, to make Purchases Loans or Reinvestments or to provide funding thereforLiquidity Fundings; or
(E5) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, assesses deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be:
(Ax) to increase the cost to or to impose a cost on (1I) an Affected Party funding or making or maintaining (or providing or agreeing to provide funding for) any Purchases or ReinvestmentsLoan, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity AgreementFunding, or any commitment of such Affected Party with respect to any of the foregoing, or (2II) any Agent of the Agents for continuing its or the SellerBorrower’s relationship with any InvestorAffected Party, in each case, in an amount deemed to be material by such Affected Party,
(By) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any the Liquidity Agreement, or
or (Cz) in the reasonable determination of such Affected Party, to reduce the rate of return on the such Affected Party’s capital of an Affected Party as a consequence of its obligations hereunder Outstanding Advance Amount, its Liquidity Commitment, Liquidity Funding or arising in connection herewith the Loans made by it to a level below that which such Affected Party could otherwise have achievedachieved but for the occurrence of such circumstances, then, within thirty days after demand by such Affected Party (which demand shall be made not more than 45 days after the date on which the Affected Party becomes aware of such Regulatory Change and shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, of the amounts claimed by the Affected Party), the Seller Borrower shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such actual additional or cost, actual increased cost or such actual reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.46234227 1009038607v4
Appears in 1 contract
Samples: Credit and Security Agreement (International Paper Co /New/)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange in Law:
(Ai) shall subject an Affected Party to any Tax, duty or other charge (other than Taxes, which shall be governed by Section 3.3(e)) with respect to the portion of the any Investment or interest in any Asset Interest owned by Portfolio owned, maintained or funded by itit (or its participation in any of the forgoing), or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of maintenance therefor (or its participation in any portion of the Invested Amount, CP Costs or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; orforegoing);
(Bii) shall impose, modify modify, or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount)reserve, special deposit deposit, or similar requirement against assets of any Affected Party, deposits deposits, or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board or other Governmental Authority to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or;
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(Diii) shall impose any other condition affecting any Investment or any Asset Interest owned Portfolio owned, maintained, or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make (or participate in) Purchases or Reinvestments or to provide (or participate in) funding therefor; ortherefor or the maintenance thereof;
(Eiv) shall change the rate for, or changes the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) or similar Person assesses, deposit insurance premiums premiums, or similar chargescharges which an Affected Party is obligated to pay; or
(v) shall (i) change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party or (ii) subject any Affected Party to any Taxes (other than (A) Indemnified Taxes and (B) Excluded Taxes) on its Purchases, Asset Portfolios, commitments, or other obligations, or its deposits, reserves, other liabilities, or capital attributable thereto; and the result of any of the foregoing is or would be, in each case, as determined by the applicable Purchaser Agent or the applicable Affected Party:
(A) to increase the cost to (or to impose a cost on on) (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, any Enhancement Agreement, or any commitment (hereunder or under any Liquidity Agreement or any Enhancement Agreement) of such Affected Party with respect to any of the foregoing, or (2) the Collateral Agent, any Purchaser Agent, or the Administrative Agent for continuing its or the Seller’s relationship with any Investor,Purchaser;
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement, any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement, ) with respect thereto; or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an such Affected Party as a consequence of its obligations hereunder hereunder, under any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement), including its funding or maintenance of any portion of any Investment or any Asset Portfolio, or arising in connection herewith (or therewith) to a level below that which such Affected Party could otherwise have achievedachieved hereunder or thereunder, then, subject to Section 4.2(d) below, on the Settlement Date (or during the Liquidation Period or after the occurrence of an Event of Termination, Collection Control Event, or Non-Reinvestment Event that remains continuing, within thirty days after demand by two (2) Business Days) following its receipt of notice from such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed or by the Affected PartyAdministrative Agent or a Purchaser Agent on its behalf) in accordance with Section 4.2(c), the Seller Sellers shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will (or the Administrative Agent or a Purchaser Agent on its behalf), shall promptly notify the Seller, Servicer (on behalf of the Sellers) and the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, that no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation; provided that the Sellers shall not be required to compensate an Affected Party for any increased costs or reductions incurred more than six months prior to the date that such Affected Party notifies the Sellers of such event giving rise to such increased costs or reductions and of such Affected Party’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (it, in its reasonable sole discretion) , shall deem applicable. Any Affected Party (or the Administrative Agent or a Purchaser Agent on its behalf) when making a claim under this Section 4.2 shall submit to the Seller Servicer (on behalf of the certificate (referred to in subsection (aSellers) above) as to and the Administrative Agent a written statement of such increased cost or reduced return (including calculation thereof in reasonable detail)return, which statement shallstatement, in the absence of demonstrable manifest error, shall be conclusive and binding upon so long as it reflects a reasonable basis for the Sellercalculation of the amounts set forth therein.
(d) For Failure or delay on the avoidance part of doubt, (w) any interpretation of FAS 166 or FAS 167 Affected Party (or the Administrative Agent or any successor Accounting Standards Codification SubtopicPurchaser Agent) to demand compensation pursuant to this Section 4.2 shall not constitute a waiver of such Affected Party’s (or the Administrative Agent’s or any Purchaser Agent’s on its behalf) right to demand such compensation; provided that the Sellers shall not be required to compensate an Affected Party for any increased costs or reductions incurred more than six (6) months prior to the date that such Affected Party notifies the Sellers of the event giving rise to such increased costs or reductions and of such Affected Party’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof.
(e) Notwithstanding anything to the contrary set forth in this Agreement, Sellers shall not be liable to any member of any Purchaser Group for any amounts under this Section 4.2 caused by delivery of a Delayed Purchase Notification by any member of such Purchaser Group.
(f) The Sellers acknowledge that any Affected Party may institute measures in anticipation of a Change in Law (including, without limitation, the Financial Accounting Standards Board imposition of internal charges on such Affected Party’s interests or obligations under this Agreement), and any pronouncement, interpretation may commence allocating charges to or release by seeking compensation from the International Accounting Standards Board, (x) any request, rule, guideline or directive Sellers under or issued this Section 4.2 in connection with such measures, in advance of the Xxxx-Xxxxx Xxxx Street Reform effective date of such Change in Law, and Consumer Protection Act the Sellers agree to pay such charges or compensation to such Affected Party (whether or not having the force except for Taxes contemplated by clause (ii) of lawSection 4.2(a)(v)), regardless to the extent such charges or compensation would otherwise be payable by the Sellers under this Section 4.2 after such effective date of such Change in Law, following demand therefor without regard to whether such effective date has occurred but only to the extent of, and on or after such Affected Party’s measures must be implemented prior to such effective date at the demand of the date enacted, adopted applicable prudential regulator. The Sellers further acknowledge that any charge or issued, or (y) any request, rule, guideline or directive promulgated compensation demanded hereunder may take the form of a monthly charge to be assessed by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2Affected Party.
Appears in 1 contract
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange occurring after the date hereof:
(Ai) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the any portion of the Asset Interest Commitment Amount owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of in relation to any portion funding of the Invested Amount, CP Costs Commitment Amount or Earned Discount interest owned by, owed to or funded in whole or in part by it or any other amounts due under this Loan Agreement in respect of the any portion of the Asset Interest Commitment Amount owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for taxes based on, or measured by, net income, or changes in the rate of tax on or determined by reference to the overall net income, of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located or, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located); or
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discountinterest), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board to be an affiliateAffiliate) of any Affected Party, or credit extended by any Affected Party; or
(Ciii) shall change the amount of capital maintained maintained, or required or requested or directed to be maintained maintained, by any Affected Party; or
(Div) shall impose any other condition affecting any Asset Interest portion of the Commitment Amount owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding or liquidity or credit support therefor; or
(Ev) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.:
Appears in 1 contract
Yield Protection. If (a) If (i) Regulation D or (iib) any Regulatory ChangeChange occurring after November 15, 2002:
(Ai) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the any Asset Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for (A) taxes based on, or measured by, net income, or changes in the rate of tax on or determined by reference to the overall net income, of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located or, (B) franchise taxes, taxes on, or in the nature of, doing business taxes or capital taxes); or
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(Ciii) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(Div) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(Ev) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any the Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any the Administrative Agent for continuing its or the Seller’s 's relationship with any Investorthe Purchaser, in each case, in an amount deemed to be material by such Affected Party,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any the Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Georgia Gulf Corp /De/)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:Change occurring after the date hereof
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset Interest any Loan owned by by, owed to or funded by it, or any obligations or right to make Purchases or Reinvestments Loans or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion part of the Invested Amount, CP Costs or Earned Discount Loans owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the Loans (or any portion of the Asset Interest thereof) owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments Loans or to provide funding therefortherefor (except for changes in the rate of any tax which is a franchise tax or a tax on the net income of such Affected Party imposed by the United States of America, by any jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by any jurisdiction where such Affected Party's principal office in the United States is located); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discountthe interest rate applicable to the Loans), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected PartyParty in respect of the transactions contemplated hereby; or
(D) shall impose any other condition affecting any Asset Interest Loan owned by, owed to or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments Loans or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Receivables Financing Agreement (Anntaylor Stores Corp)
Yield Protection. (a) If (i) any change in the interpretation of Regulation D or (ii) any Regulatory Change:Change occurring after the date hereof
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset Interest or any Asset Tranche owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Purchaser's Tranche Investment or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest or any Asset Tranche owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for (1) taxes based on, or measured by, net income, or changes in the rate of tax on or determined by reference to the overall net income, of such Affected Party imposed by the United States of America, or by the jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located or, (2) franchise taxes, taxes on, or in the nature of, doing business taxes or capital taxes); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Cadmus Communications Corp/New)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange occurring after June 19, 2000:
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Amount or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for (1) taxes based on, or measured by, net income, or changes in the rate of tax on or determined by reference to the overall net income, of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party’s principal executive office is located and, if such Affected Party’s principal executive office is not in the United States of America, by the jurisdiction where such Affected Party’s principal office in the United States is located or, (2) franchise taxes, taxes on, or in the nature of, doing business taxes or capital taxes); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any InvestorPurchaser, in each case, in an amount deemed to be material by such Affected Party,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction; provided, however, the Seller shall only be required to compensate any such Affected Party for such amounts to the extent that such Affected Party is requiring all of its other similarly situated customers to compensate it for such amounts.
(b) Each Affected Party will promptly notify the Seller, the Administrative Seller and each Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 Fin. 46R or FAS 167 (or any successor Accounting Standards Codification Subtopic) 140 by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, shall constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Lennox International Inc)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:Change occurring after the date hereof
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset any Purchaser's Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested AmountPurchaser's Investment, CP Costs or Earned Discount or Interest Amount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset any Purchaser's Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for changes in the rate of tax on the overall net income of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned DiscountDiscount or Interest Amount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or;
(D) shall impose any other condition affecting any Asset Purchaser's Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Yield Protection. (a) If (i) compliance by any ---------------- Purchaser Party with Regulation D or any other guideline or request from any central bank or other 55 Governmental Authority (whether or not having the force of law) or (ii) any Regulatory ChangeChange occurring, in each case, after the date hereof:
(A) shall subject an Affected any Purchaser Party to any Taxtax, duty or other charge with respect to the portion of the Asset any Undivided Fractional Interest owned by or funded by it, or any obligations or right to make Purchases Purchases, issue or Reinvestments participate in Letters of Credit or make or participate in Swing Line Advances or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Purchaser Party of any portion of the Invested Amount, CP Costs principal or Earned Discount Yield owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement or any other Transaction Document in respect of the portion of the Asset any Undivided Fractional Interest owned by or funded by it or its obligations or rights, if any, to make Purchases Purchases, issue or Reinvestments participate in Letters of Credit or make or participate in Swing Line Advances or to provide funding therefortherefor (except for changes in the rate of tax on the overall net income of such Purchaser Party imposed by the United States of America, by the jurisdiction in which such Purchaser Party's principal executive office is located and, if such Purchaser Party's principal executive office is not in the United States of America, by the jurisdiction where such Purchaser's principal office in the United States is located); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, including any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned DiscountYield), special deposit or similar requirement against assets of any Affected PartyPurchaser, deposits or obligations with or for the account of any Affected Purchaser Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Purchaser Party, or credit extended by any Affected Purchaser Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected PartyPurchaser; or
(D) shall impose any other condition affecting any Asset Undivided Fractional Interest owned or funded in whole or in part by any Affected PartyPurchaser, or its obligations or rights, if any, to make Purchases Purchases, issue or Reinvestments participate in Letters of Credit or make or participate in Swing Line Advances or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.:
Appears in 1 contract
Samples: Purchase and Servicing Agreement (Ak Steel Holding Corp)
Yield Protection. (a) If any Regulatory Change (including a change to Regulation D under the Securities Act):
(i) Regulation D or (ii) any Regulatory Change:
(A) shall subject an Affected Party to any Tax, duty or other charge with respect to the portion of the Asset Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit deposit, insurance assessment, or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any an Affected Party, or credit extended to or participated in by any Affected Party; or;
(Cii) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or;
(Diii) shall impose any other condition condition, cost or expense affecting this Agreement or any Asset Interest owned or funded in whole or in part by any Affected Party, Program Support Agreement or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; orpursuant to any Program Support Agreement;
(Eiv) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a any successor thereto) assesses, assesses deposit insurance premiums or similar charges; or
(v) shall subject any Affected Party to any tax of any kind whatsoever with respect to any Program Support Agreement, or change the basis of taxation of payments to such Affected Party in respect thereof (except for Indemnified Taxes or other Taxes covered by Section 1.11 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Affected Party), and the result of any of the foregoing is or would be:
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, Program Support Agreement or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,;
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Program Support Agreement, ; or
(C) in the reasonable sole determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or under any Program Support Agreement or arising in connection herewith to a level below that which such the Affected Party could otherwise have achieved, then, within thirty days after ; then on the Settlement Date following the date of demand by such Affected Party (which demand shall be accompanied by a certificate setting forthParty, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, reduction shall be included in the judgment of such Affected PartyConduit Financing Costs and/or Other Conduit Costs, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount as provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the SellerAdministration Agreement.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Yield Protection. (a) If (i) Regulation D any Regulatory Change occurring after the date hereof or (ii) any Regulatory Change:Regulation D
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset any Purchased Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Purchaser's Total Investments or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Purchased Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except with respect to any tax on or determined by reference to the overall net income of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; orbut
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected PartyParty (excluding any such change in the amount of capital resulting from the application of (as opposed to a change in) any law, rule, regulation, interpretation, directive or requirement existing on the date hereof); or
(D) shall impose any other condition affecting any Asset Purchased Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Standard Products Co)
Yield Protection. (a) If (i) any change in the interpretation of Regulation D or (ii) any Regulatory ChangeChange occurring after November 20, 2002:
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset Interest or any Asset Tranche owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Purchaser's Tranche Investment or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest or any Asset Tranche owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for (1) taxes based on, or measured by, net income, or changes in the rate of tax on or determined by reference to the overall net income, of such Affected Party imposed by the United States of America, or by the jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located or, (2) franchise taxes, taxes on, or in the nature of, doing business taxes or capital taxes); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Cadmus Communications Corp/New)
Yield Protection. (a) If (i) If, after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, including Regulation D of the Board of Governors of the Federal Reserve System, 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 Purchaser or any Person controlling any thereof, any permitted assignee under this Agreement or any Person maintaining any liquidity, purchase or credit enhancement facility for any Purchaser (iieach of which being an "Affected Party") with any Regulatory Change:request or directlye (whether or not having the force of law) of any such authority, central bank or comparable agency,
(A) shall subject an Affected Party to any Taxtax (except for taxes on the overall net income of such Affected Party), duty or other charge with respect to the portion of the Asset Interest owned by or funded by it, Receivable Interests or any obligations or right to make Purchases or Reinvestments or to provide funding thereforpurchases, or shall change the basis of taxation of payments to the an Affected Party of any portion of the Invested Amount, CP Costs its Capital or Earned Discount owned by, owed to or funded in whole or in part by it Yield or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it its Capital or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding thereforpurchases; or
(B) shall impose, modify or deem applicable any reserve requirement (including, without limitation, any reserve requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding any reserve requirement, if any, included in the determination of Earned DiscountYield), special deposit or similar requirement against assets of any Affected Partyof, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Partyof, or credit extended by by, any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned the Receivable Interests or funded in whole or in part by any Affected Party, or its obligations or the Purchaser's rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar chargespurchases; and the result of any of the foregoing is or would be
(Ai) to increase the cost to, or, in the case of Regulation D referred to or above, to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoingReceivable Interest, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(Bii) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreementwith respect thereto, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, then within thirty ten days after demand by such Affected Party (which demand shall be accompanied by a certificate statement setting forth, in reasonable detail, forth the basis of for such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Partydemand), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost incurred or such reduction suffered.
(b) If an Affected Party shall reasonably determine that the adoption of any applicable law, rule, regulation, directlye or guideline regarding capital adequacy, or any change in or phase-in of any applicable law, rule, regulation, directlye or guideline 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 an Affected Party with any request or directlye 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 the capital of any Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which any such Affected Party could have achieved but for such adoption, change or compliance (taking into consideration the policies of such Affected Party with respect to capital adequacy) by an amount deemed by such Affected Party to be material, then from time to time, within ten days after demand by such Affected Party, the Seller shall pay to such Affected Party such additional amount or amounts as will compensate such Affected Party for such reduction.
(bc) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, Seller of any event of which it has knowledge (including any future event that, in occurring after the judgment of such Affected Party, is reasonably certain to occur) date hereof which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure 2.08. If an Affected Party fails to give or delay in giving such notification shall adversely affect the rights notice within 90 days after it obtains actual knowledge of any such event and such result, such Affected Party shall be entitled to compensation pursuant to this Section 2.08 only to the extent such compensationadditional amount or reduction accrues on or after the date 90 days prior to the date on which such Affected Party gives such notice.
(cd) In determining any amount provided for or referred to in this Section 4.22.08, an the Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicablemethods. Any Affected Party when making a claim under this Section 4.2 2.08 shall submit to the Seller the a certificate (referred to in subsection (a) above) as to such additional or increased cost or reduced return (including calculation thereof in reasonable detail)reduction, which statement shall, in the absence of certificate shall be conclusive absent demonstrable error; provided, be conclusive and binding upon that the Sellerfailure to deliver any such certificate shall not affect the Affected Party's right to payment hereunder unless notice as required by Section 2.08(c) has not been given.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Georgia Pacific Corp)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:Change occurring after the date hereof
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the Purchaser's Interest or any portion of the Asset Interest owned by or funded by itthereof, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Purchaser's Investment or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the Purchaser's Interest or any portion of the Asset Interest owned by or funded by it thereof or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for changes in the rate of tax on the overall net income of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting the Purchaser's Interest or any Asset Interest portion thereof owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a any successor thereto) assesses, deposit insurance premiums or similar charges, or shall impose on any Affected Party a requirement to maintain deposit insurance; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Securitization Agreement (Yuasa Inc)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:Change occurring after the date hereof
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset Interest owned by or funded by itits Obligations or, or as applicable, its commitment under any obligations or right to make Purchases or Reinvestments or to provide funding thereforLiquidity Agreement, or shall change the basis of taxation of payments to the Affected Party of any portion Obligations, or as applicable, its commitment under any Liquidity Agreement (except for (1) taxes based on, or measured by, net income, or changes in the rate of tax on or determined by reference to the overall net income, of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party’s principal executive office is located and, if such Affected Party’s principal executive office is not in the United States of America, by the jurisdiction where such Affected Party’s principal office in the United States is located, (2) franchise taxes, taxes on, or in the nature of, doing business taxes or capital taxes), or (3) withholding taxes required for payments made to any foreign entity which, at the time such foreign entity issues its Liquidity Commitment or becomes an assignee of the Invested AmountLender hereunder, CP Costs fails to deliver to the Administrator and the Borrower an accurate IRS Form 1001 or Earned Discount owned by4224, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding thereforas applicable; or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned or funded Advance made in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases Loans or Reinvestments or to provide funding thereforLiquidity Fundings; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Credit and Security Agreement (Lanier Worldwide Inc)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange (including a change to Regulation D) occurring after the date hereof:
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset Interest any Noteholder Loan owned by or funded by itit (other than taxes, duties or charges based on income or gross receipts imposed by the jurisdiction in which such Affected Party's principal executive office is located), or any obligations or right to make Purchases or Reinvestments Noteholder Loans or to provide funding therefor, or shall change the basis of taxation (other than taxes based on income or gross receipts imposed by the jurisdiction in which such Affected Party's principal executive office is located) of payments to the Affected Party of any portion of the Invested Amount, CP Costs interest or Earned Discount owned by, principal owed to or with respect to Noteholder Loans funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest Noteholder Loans owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments Noteholder Loans or to provide funding therefortherefor (except for changes in the rate of tax on the overall net income or gross receipts of such Affected Party imposed by the jurisdiction in which such Affected Party's principal executive office is located); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discountinterest on the Noteholder Loans), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or;
(D) shall impose any other condition affecting any Asset Interest Noteholder Loan owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments Noteholder Loans or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Indenture (Direct Iii Marketing Inc)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange occurring after the date hereof:
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the any Asset Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Purchaser's Total Investments or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for changes in the rate of tax on or determined by reference to the overall net income of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Yield Protection. (a) If (i) If, after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, including Regulation D of the Board of Governors of the Federal Reserve System, 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 Secondary Purchaser or any Person controlling any Secondary Purchaser, or any permitted assignee under this Agreement (iieach of which being an "Affected Party" with any request or directive (whether or not having the ---------------- force of law) of any Regulatory Change:such authority, central bank or comparable agency,
(A) shall subject an Affected Party to any Taxtax (except for taxes on the overall net income of such Affected Party), duty or other charge with respect to the portion of the Asset Interest owned by or funded by it, Receivable Interests or any obligations or right to make Purchases or Reinvestments or to provide funding thereforpurchases, or shall change the basis of taxation of payments to the an Affected Party of any portion of the Invested Amount, CP Costs its Capital or Earned Discount owned by, owed to or funded in whole or in part by it Yield or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it its Capital or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding thereforpurchases; or
(B) shall impose, modify or deem applicable any reserve requirement (including, without limitation, any reserve requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding any reserve requirement, if any, included in the determination of Earned DiscountYield), special deposit or similar requirement against assets of any Affected Partyof, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Partyof, or credit extended by by, any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned the Receivable Interests or funded in whole or in part by any Affected Party, or its obligations or the Secondary Purchaser's rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar chargespurchases; and the result of any of the foregoing is or would be
(Ai) to increase the cost to, or, in the case of Regulation D referred to or above, to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoingReceivable Interest, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(Bii) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreementwith respect thereto, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, then within thirty ten days after demand by such Affected Party (which demand shall be accompanied by a certificate statement setting forth, in reasonable detail, forth the basis of for such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Partydemand), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost incurred or such reduction suffered.
(b) If an Affected Party shall reasonably determine that the adoption of any applicable law, rule, regulation, directive or guideline regarding capital adequacy, or any change in or phase-in of any applicable law, rule, regulation, directive or guideline 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 an Affected Party 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 the capital of any Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which any such Affected Party could have achieved but for such adoption, change or compliance (taking into consideration the policies of such Affected Party with respect to capital adequacy) by an amount deemed by such Affected Party to be material, then from time to time, within ten days after demand by such Affected Party, the Seller shall pay to such Affected Party such additional amount or amounts as will compensate such Affected Party for such reduction.
(bc) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, Seller of any event of which it has knowledge (including any future event that, in occurring after the judgment of such Affected Party, is reasonably certain to occur) date hereof which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure 2.08. If an Affected Party fails to give or delay in giving such notification shall adversely affect the rights notice within 90 days after it obtains actual knowledge of any such event and such result, such Affected Party shall be entitled to compensation pursuant to this Section 2.08 only to the extent such compensationadditional amount or reduction accrues on or after the date 90 days prior to the date on which such Affected Party gives such notice.
(cd) In determining any amount provided for or referred to in this Section 4.22.08, an the Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicablemethods. Any Affected Party when making a claim under this Section 4.2 2.08 shall submit to the Seller the a certificate (referred to in subsection (a) above) as to such additional or increased cost or reduced return (including calculation thereof in reasonable detail)reduction, which statement shall, in the absence of certificate shall be conclusive absent demonstrable error; provided, be conclusive and binding upon that the Seller--------- failure to deliver any such certificate shall not affect the Affected Party's right to payment hereunder unless notice as required by Section 2.08(c) has not been given.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Georgia Pacific Corp)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange occurring or implemented after the date hereof or, without limiting the generality of the foregoing, any Specified Regulation:
(Ai) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the any Asset Interest owned by owned, maintained or funded by itit (or its participation in any of the forgoing), or any obligations or right to make Purchases or Reinvestments or to provide funding thereforor maintenance therefor (or its participation in any of the foregoing), or shall change the basis of taxation of payments to the Affected Party or other Indemnified Party of any portion of the Invested Amount, CP Costs Purchasers’ Total Investment or Earned Discount Yield owned by, owed to to, funded or funded maintained in whole or in part by it (or its participation in any of the foregoing) or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by owned, maintained or funded by it or its obligations or rights, if any, to make or participate in Purchases or Reinvestments or to provide funding therefor; ortherefor or the maintenance thereof;
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount)reserve, special deposit or similar requirement against assets of any Affected Party or any other Indemnified Party, deposits or obligations with or for the account of any Affected Party or any other Indemnified Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board or other Governmental Authority to be an affiliate) of any Affected Party or any other Indemnified Party, or credit extended by any Affected Party or any other Indemnified Party; or;
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(Diii) shall impose any other condition affecting any Asset Interest owned owned, maintained or funded (or participated in) in whole or in part by any Affected Party or any other Indemnified Party, or its obligations or rights, if any, to make (or participate in) Purchases or Reinvestments or to provide (or to participate in) funding therefor; ortherefor or the maintenance thereof;
(Eiv) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, or similar Person assesses deposit insurance premiums or similar chargescharges which an Affected Party is obligated to pay; or
(v) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party or any other Indemnified Party; and the result of any of the foregoing is or would be, in each case, as determined by the Agent, any Purchaser Agent or the applicable Affected Party:
(A) to increase the cost to (or to impose a cost on on) (1) an Affected Party or Indemnified Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, any Enhancement Agreement or any commitment (hereunder or under any Liquidity Agreement or any Enhancement Agreement) of such Affected Party or Indemnified Party with respect to any of the foregoing, or (2) any an Agent for continuing its or the Seller’s relationship with any InvestorPurchaser or any LOC Issuer,
(B) to reduce the amount of any sum received or receivable by an Affected Party or Indemnified Party under this Agreement, any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement) with respect thereto, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an such Affected Party or Indemnified Party as a consequence of its obligations hereunder hereunder, under any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement), including its funding or maintenance of any portion of the Asset Interest, or arising in connection herewith (or therewith) to a level below that which such Affected Party or Indemnified Party could otherwise have achievedachieved hereunder or thereunder, then, then within thirty days after ten (10) Business Days following demand by such Affected Party or Indemnified Party or Agent on its behalf (which demand shall be accompanied or such later date as specified in writing by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party, Indemnified Party or Agent, as applicable), the Seller shall pay directly to such Affected Party or Indemnified Party such additional amount or amounts as will compensate such Affected Party or Indemnified Party for such additional or increased cost or such reduction.
(b) Each Affected Party will or Indemnified Party, as applicable, shall promptly notify the Seller, the Administrative Seller and Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party or Indemnified Party to compensation pursuant to this Section 4.2; provided, however, no provided that failure to give or delay in giving such notification shall adversely affect on the rights part of any Affected Party or Indemnified Party to demand compensation pursuant to this Section 4.2 shall not constitute a waiver of such Affected Party’s or Indemnified Party’s right to demand such compensation; provided further that Seller shall not be required to compensate an Affected Party or Indemnified Party pursuant to this Section 4.2 for any increased costs or reductions incurred more than 135 days prior to the date that such Affected Party or Indemnified Party, as the case may be, notifies Seller and Agent of the Regulatory Change giving rise to such compensationincreased costs or reductions and of such Affected Party’s or Indemnified Party’s intention to claim compensation therefor; provided further that, if the Regulatory Change giving rise to such increased costs or reductions is retroactive, then the 135-day period referred to above shall be extended to include the period of retroactive effect thereof.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (it, in its reasonable sole discretion) , shall deem applicable. Any Affected Party or Indemnified Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to a statement of such increased cost or reduced return (including calculation thereof in reasonable detail)return, which statement shallstatement, in the absence of demonstrable manifest error, shall be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Yield Protection. (a) If any Regulatory Change (including a change to Regulation D under the Securities Exchange Act of 1933, as amended) occurring after the date hereof:
(i) Regulation D or (ii) any Regulatory Change:
(A) shall subject an any Affected Party to any Taxtax, duty or other charge with respect to the any portion of the Asset Interest Obligations owned by or funded by itit or with respect to its Unused Commitment (as defined in the Liquidity Agreement) (other than taxes, duties or any obligations charges based on income or right to make Purchases or Reinvestments or to provide funding thereforgross receipts), or shall change the basis of taxation (other than taxes based on income or gross receipts) of payments to the Affected Party of any portion of yield on or reductions to the Invested Amount, CP Costs or Earned Discount owned by, Obligations owed to or with respect to the Obligations funded in whole or in part by it or any other amounts due under this Agreement in respect of the any portion of the Asset Interest Obligations owned by or funded by it or its obligations or rights, if any, to make Purchases fund Advances or Reinvestments in respect of its Unused Commitment (except for changes in the rate of tax on the overall net income or to provide funding thereforgross receipts of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located); or
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discountyield on the Obligations), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any an Affected Party, or credit extended by to any Affected Party; or
(Ciii) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or;
(Div) shall impose any other condition affecting any Asset Interest portion of the Obligations owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments pay any portion of the Unused Commitment or to provide funding therefor; or
(Ev) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a any successor thereto) assesses, assesses deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be:
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases portion of the Obligations, or Reinvestments, any purchases, reinvestments, reinvestments or loans or other extensions of credit under the Liquidity Agreement or any Liquidity Agreement, other Transaction Document or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,;
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement, or under the Liquidity Agreement or under any Liquidity Agreement, other Transaction Document with respect thereto; or
(C) in the reasonable sole determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or under the Liquidity Agreement or arising in connection herewith to a level below that which such the Affected Party could otherwise have achieved, then, ; then within thirty 30 days after demand by such Affected Party (which demand shall be accompanied by a certificate statement setting forth, forth in reasonable detail, detail the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Partydemand), the Seller Borrower shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction; provided such additional amount or amounts shall not be payable with respect to any period in excess of 180 days prior to the date of demand by the Affected Party unless (1) the effect of the Regulatory Change is retroactive by its terms to a period prior to the date of the Regulatory Change, in which case any additional amount or amounts shall be payable for the retroactive period but only if the Affected Party provides its written demand not later than 180 days after the Regulatory Change, of (2) the Affected Party reasonably and in good faith did not believe the Regulatory Change resulted in such an additional or increased cost or such a reduction.
(b) Each Affected Party will promptly notify the SellerBorrower, the Administrative Agent Required Lenders and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has actual knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to any compensation pursuant to this Section 4.22.17; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensationcompensation unless such failure or delay results in a Material Adverse Effect.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange enacted after the date hereof:
(Ai) shall subject an Affected Indemnified Party to any Taxtax, duty or other charge with respect to the portion any Asset or Collateral funded by it (or its participation in any of the Asset Interest owned by or funded by itforegoing), or any obligations or right to make Purchases or Reinvestments fund Borrowings or to provide funding thereforor maintenance therefor (or its participation in any of the foregoing), or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs or Earned Discount owned byIndemnified Party, owed to to, funded or funded maintained in whole or in part by it (or its participation in any of the foregoing) or any other amounts due under this Agreement or the other Transaction Documents in respect of the portion of the Asset Interest owned by interest owned, maintained or funded by it or its obligations or rights, if any, any to make Purchases fund or Reinvestments participate in Borrowings or to provide funding therefor; ortherefor or the maintenance thereof, in each case, other than Excluded Taxes;
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount)reserve, special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Indemnified Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board or other Governmental Authority to be an affiliate) of any Affected Indemnified Party, or credit extended by any Affected Party; orIndemnified Party to the Issuer or any Co-Issuer;
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(Diii) shall impose any other condition affecting any Asset Interest owned or Collateral funded (or participated in) in whole or in part by any Affected Indemnified Party, or its obligations or rights, if any, to make Purchases fund (or Reinvestments participate in) Borrowings or to provide (or to participate in) funding therefortherefor or the maintenance thereof; or
(Eiv) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, or similar Person assesses deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be, in each case, as determined by Agent or the applicable Indemnified Party:
(A) to increase the cost to (or to impose a cost on on) (1) an Affected Indemnified Party funding or making or maintaining any Purchases Borrowings hereunder or Reinvestments, any purchases, reinvestments, reinvestments or loans or other extensions of credit under any Liquidity Agreement, any Enhancement Agreement or any commitment hereunder (or under any Liquidity Agreement or any Enhancement Agreement) in connection with Borrowings hereunder of such Affected Indemnified Party with respect to any of the foregoing, or (2) any the Program Administrator or the Agent for continuing its or the Seller’s relationship with any Investorthe Lender,
(B) to reduce the amount of any sum received or receivable by an Affected Indemnified Party under this Agreement, any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement) with respect hereto, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected such Indemnified Party as a consequence of its obligations hereunder hereunder, under any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement related hereto), including its funding or maintenance of a Borrowing, or arising in connection herewith (or therewith) to a level below that which such Affected Indemnified Party could otherwise have achievedachieved hereunder or thereunder, then, within thirty days after demand by such Affected Party subject to the provisions of paragraph (which demand shall be accompanied by a certificate setting forth, in reasonable detailb) below, the basis of such demand Issuer and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller each Co-Issuer shall pay directly to such Affected Indemnified Party such additional amount or amounts as will compensate such Affected Indemnified Party for such additional or increased cost or such reduction.
(b) Each Affected Indemnified Party, as applicable, shall promptly (and in any event by the later of (i) 30 Business Days before the commencement of accrual of any amounts to be paid by the Issuer or any Co-Issuer under this Section or Section 12.16 and (ii) the date on which an officer responsible for the transaction hereunder of the Agent or the requesting Indemnified Party will promptly has actual knowledge of an increased cost resulting from such Regulatory Change or Imposition (as defined in Section 12.16 herein)) notify the Seller, the Administrative Issuer and Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Indemnified Party to compensation pursuant to this Section 4.2; provided12.14 or pursuant to Section 12.16, however, provided that no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Indemnified Party to such compensation, except to the extent such delay in giving notice has resulted in an increase in the amount of compensation which would otherwise have been payable had timely notice been delivered.
(c) In determining any amount provided for or referred to in this Section 4.212.14, an Affected Indemnified Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Indemnified Party when making a claim under this Section 4.2 12.14 shall submit to the Seller the certificate (referred to in subsection (a) above) Issuer a statement as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, shall in the absence of demonstrable manifest error, be conclusive and binding upon the SellerIssuer and each Co-Issuer.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Yield Protection. (a) If (i) If, after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, including Regulation D of the Board of Governors of the Federal Reserve System, 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 Purchaser or any Person controlling any thereof, any permitted assignee under this Agreement or any Person maintaining any liquidity, purchase or credit enhancement facility for any Purchaser (iieach of which being an "Affected Party") with any Regulatory Change:request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency,
(A) shall subject an Affected Party to any Taxtax (except for taxes on the overall net income of such Affected Party), duty or other charge with respect to the portion of the Asset Interest owned by or funded by it, Receivable Interests or any obligations or right to make Purchases or Reinvestments or to provide funding thereforpurchases, or shall change the basis of taxation of payments to the an Affected Party of any portion of the Invested Amount, CP Costs its Capital or Earned Discount owned by, owed to or funded in whole or in part by it Yield or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it its Capital or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding thereforpurchases; or
(B) shall impose, modify or deem applicable any reserve requirement (including, without limitation, any reserve requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding any reserve requirement, if any, included in the determination of Earned DiscountYield), special deposit or similar requirement against assets of any Affected Partyof, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Partyof, or credit extended by by, any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned the Receivable Interests or funded in whole or in part by any Affected Party, or its obligations or the Purchaser's rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar chargespurchases; and the result of any of the foregoing is or would be
(Ai) to increase the cost to, or, in the case of Regulation D referred to or above, to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoingReceivable Interest, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(Bii) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreementwith respect thereto, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, then within thirty ten days after demand by such Affected Party (which demand shall be accompanied by a certificate statement setting forth, in reasonable detail, forth the basis of for such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Partydemand), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost incurred or such reduction suffered.
(b) If an Affected Party shall reasonably determine that the adoption of any applicable law, rule, regulation, directive or guideline regarding capital adequacy, or any change in or phase-in of any applicable law, rule, regulation, directive or guideline 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 an Affected Party 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 the capital of any Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which any such Affected Party could have achieved but for such adoption, change or compliance (taking into consideration the policies of such Affected Party with respect to capital adequacy) by an amount deemed by such Affected Party to be material, then from time to time, within ten days after demand by such Affected Party, the Seller shall pay to such Affected Party such additional amount or amounts as will compensate such Affected Party for such reduction.
(bc) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, Seller of any event of which it has knowledge (including any future event that, in occurring after the judgment of such Affected Party, is reasonably certain to occur) date hereof which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure 2.08. If an Affected Party fails to give or delay in giving such notification shall adversely affect the rights notice within 90 days after it obtains actual knowledge of any such event and such result, such Affected Party shall be entitled to compensation pursuant to this Section 2.08 only to the extent such compensationadditional amount or reduction accrues on or after the date 90 days prior to the date on which such Affected Party gives such notice.
(cd) In determining any amount provided for or referred to in this Section 4.22.08, an the Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicablemethods. Any Affected Party when making a claim under this Section 4.2 2.08 shall submit to the Seller the a certificate (referred to in subsection (a) above) as to such additional or increased cost or reduced return (including calculation thereof in reasonable detail)reduction, which statement shall, in the absence of certificate shall be conclusive absent demonstrable error; provided, be conclusive and binding upon that the Sellerfailure to deliver any such certificate shall not affect the Affected Party's right to payment hereunder unless notice as required by Section 2.08(c) has not been given.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Georgia Pacific Corp)
Yield Protection. (a) If (i) any change in the interpretation of Regulation D or (ii) any Regulatory ChangeChange occurring after October 26, 1999:
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset Interest or any Asset Tranche owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Purchaser's Tranche Investment or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest or any Asset Tranche owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for (1) taxes based on, or measured by, net income, or changes in the rate of tax on or determined by reference to the overall net income, of such Affected Party imposed by the United States of America, or by the jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located or, (2) franchise taxes, taxes on, or in the nature of, doing business taxes or capital taxes); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Cadmus Communications Corp/New)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange occurring after the date hereof:
(Ai) shall subject an Affected Party to any Tax, duty or other charge with respect to the portion of the Asset Interest owned by its Obligations or, as applicable, its Commitment or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding thereforits Liquidity Commitment, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs or Earned Discount owned byObligations, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of its Obligations or, as applicable, its Commitment or its Liquidity Commitment except for (A) Taxes based on, or measured by, net income or net profits, or changes in the portion rate of Tax on or determined by reference to the overall net income or net profits, of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office and/or its applicable lending office is located and, if such Affected Party's principal executive office or its applicable lending office is not in the United States of America, by the jurisdiction where such Affected Party's principal office or applicable lending office is located, (B) franchise Taxes, Taxes on, or in the nature of, doing business Taxes or capital Taxes, or (C) withholding Taxes required for payments made to any foreign entity (other than withholding Taxes imposed by the United States as a result of a change in law after the date hereof and before such foreign entity issues its Commitment or Liquidity Commitment or becomes an assignee of a Lender hereunder), unless such foreign entity fails to deliver to each of the Asset Interest owned by Co-Agents and the Borrower an accurate IRS Form W-8BEN or funded by it W-8ECI (or its obligations or rightsthe applicable successor form), if any, to make Purchases or Reinvestments or to provide funding thereforas applicable; or
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve that was not included in the determination computation of Earned Discount)the applicable Interest Rate, or any special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(Ciii) shall change affect the amount of capital maintained or required or requested or directed expected to be maintained by any Affected Party; or
(Div) shall impose any other condition affecting any Asset Interest Obligation owned or funded in whole or in part by any Affected Party, or its obligations rights or rightsobligations, if any, to make Purchases Loans or Reinvestments or to provide funding thereforLiquidity Fundings; or
(Ev) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, assesses deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.:
Appears in 1 contract
Samples: Credit and Security Agreement (Quest Diagnostics Inc)
Yield Protection. (a) If (i) If, after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, including Regulation D of the Board of Governors of the Federal Reserve System, 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 Secondary Purchaser or any Person controlling any Secondary Purchaser, or any permitted assignee under this Agreement (iieach of which being an "Affected Party") with any Regulatory Change:request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency,
(A) shall subject an Affected Party to any Taxtax (except for taxes on the overall net income of such Affected Party), duty or other charge with respect to the portion of the Asset Interest owned by or funded by it, Receivable Interests or any obligations or right to make Purchases or Reinvestments or to provide funding thereforpurchases, or shall change the basis of taxation of payments to the an Affected Party of any portion of the Invested Amount, CP Costs its Capital or Earned Discount owned by, owed to or funded in whole or in part by it Yield or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it its Capital or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding thereforpurchases; or
(B) shall impose, modify or deem applicable any reserve requirement (including, without limitation, any reserve requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding any reserve requirement, if any, included in the determination of Earned DiscountYield), special deposit or similar requirement against assets of any Affected Partyof, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Partyof, or credit extended by by, any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned the Receivable Interests or funded in whole or in part by any Affected Party, or its obligations or the Secondary Purchaser's rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar chargespurchases; and the result of any of the foregoing is or would be
(Ai) to increase the cost to, or, in the case of Regulation D referred to or above, to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoingReceivable Interest, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(Bii) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreementwith respect thereto, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, then within thirty ten days after demand by such Affected Party (which demand shall be accompanied by a certificate statement setting forth, in reasonable detail, forth the basis of for such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Partydemand), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost incurred or such reduction suffered.
(b) If an Affected Party shall reasonably determine that the adoption of any applicable law, rule, regulation, directive or guideline regarding capital adequacy, or any change in or phase-in of any applicable law, rule, regulation, directive or guideline 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 an Affected Party 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 the capital of any Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which any such Affected Party could have achieved but for such adoption, change or compliance (taking into consideration the policies of such Affected Party with respect to capital adequacy) by an amount deemed by such Affected Party to be material, then from time to time, within ten days after demand by such Affected Party, the Seller shall pay to such Affected Party such additional amount or amounts as will compensate such Affected Party for such reduction.
(bc) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, Seller of any event of which it has knowledge (including any future event that, in occurring after the judgment of such Affected Party, is reasonably certain to occur) date hereof which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure 2.08. If an Affected Party fails to give or delay in giving such notification shall adversely affect the rights notice within 90 days after it obtains actual knowledge of any such event and such result, such Affected Party shall be entitled to compensation pursuant to this Section 2.08 only to the extent such compensationadditional amount or reduction accrues on or after the date 90 days prior to the date on which such Affected Party gives such notice.
(cd) In determining any amount provided for or referred to in this Section 4.22.08, an the Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicablemethods. Any Affected Party when making a claim under this Section 4.2 2.08 shall submit to the Seller the a certificate (referred to in subsection (a) above) as to such additional or increased cost or reduced return (including calculation thereof in reasonable detail)reduction, which statement shall, in the absence of certificate shall be conclusive absent demonstrable error; provided, be conclusive and binding upon that the Sellerfailure to deliver any such certificate shall not affect the Affected Party's right to payment hereunder unless notice as required by Section 2.08(c) has not been given.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Georgia Pacific Corp)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:Change occurring after the date hereof
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset Interest or any Asset Tranche owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Purchaser's Tranche Investment or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest or any Asset Tranche owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for Excluded Taxes); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) holding company of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Lifestyle Furnishings International LTD)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange occurring after the date hereof:
(Ai) shall subject an Affected Party to any Tax, duty or other charge with respect to the portion of the Asset Interest owned by its Obligations or, as applicable, its Commitment or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding thereforits Liquidity Commitment, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs or Earned Discount owned byObligations, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of its Obligations or, as applicable, its Commitment or its Liquidity Commitment except for (A) Taxes based on, or measured by, net income or net profits, or changes in the portion rate of Tax on or determined by reference to the overall net income or net profits, of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office and/or its applicable lending office is located and, if such Affected Party's principal executive office or its applicable lending office is not in the United States of America, by the jurisdiction where such Affected Party's principal office or applicable lending office is located, (B) franchise Taxes, Taxes on, or in the nature of, doing business Taxes or capital Taxes, or (C) withholding Taxes required for payments made to any foreign entity (other than withholding Taxes imposed by the United States as a result of a change in law after the date hereof and before such foreign entity issues its Commitment or Liquidity Commitment or becomes an assignee of a Lender hereunder), unless such foreign entity fails to deliver to each of the Asset Interest owned by Co-Agents and the Borrower an accurate IRS Form W-8BEN or funded by it W-8ECI (or its obligations or rightsthe applicable successor form), if any, to make Purchases or Reinvestments or to provide funding thereforas applicable; or
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve that was not included in the determination computation of Earned Discount)the applicable Interest Rate, or any special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(Ciii) shall change affect the amount of capital maintained or required or requested or directed expected to be maintained by any Affected Party; or
(Div) shall impose any other condition affecting any Asset Interest Obligation owned or funded in whole or in part by any Affected Party, or its obligations rights or rightsobligations, if any, to make Purchases Loans or Reinvestments or to provide funding thereforLiquidity Fundings; or
(Ev) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, assesses deposit insurance premiums or similar charges; or
(vi) shall require any Conduit to be consolidated for financial accounting purposes with any other Person; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.:
Appears in 1 contract
Samples: Credit and Security Agreement (Quest Diagnostics Inc)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:Change occurring after the date hereof
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the any Asset Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding thereforthere for, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Purchaser's Total Investments or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding thereforthere for (except for changes in the rate of tax on the overall net income of such Affected Party imposed by the United States of America or any state thereof (unless, with respect to a state, other than the state in which such Affected Party's chief executive offices are located, resulting from, or arising out of, the transactions contemplated under the Transaction Documents) and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or;
(D) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Yield Protection. (a) a. If (i) Regulation D or (ii) any Regulatory ChangeChange including any Specified Regulation:
(A) i. shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the any Asset Interest owned by owned, maintained or funded by itit (or its participation in any of the foregoing), or any obligations or right to make Purchases or Reinvestments or to provide funding thereforor maintenance therefor (or its participation in any of the foregoing), or shall change the basis of taxation of payments to the Affected Party or other Indemnified Party of any portion of the Invested Amount, CP Costs Total Investment or Earned Discount Yield owned by, owed to to, funded or funded maintained in whole or in part by it (or its participation in any of the foregoing) or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by owned, maintained or funded by it or its obligations or rights, if any, to make or participate in Purchases or Reinvestments or to provide funding therefor; ortherefor or the maintenance thereof;
(B) ii. shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount)reserve, special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board or other Governmental Authority to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or;
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) iii. shall impose any other condition affecting any Asset Interest owned owned, maintained or funded (or participated in) in whole or in part by any Affected Party, or its obligations or rights, if any, to make (or participate in) Purchases or Reinvestments or to provide (or to participate in) funding therefor; ortherefor or the maintenance thereof;
(E) iv. shall change increase the rate for, or changes the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) or similar Person assesses, deposit insurance premiums or similar chargescharges which an Affected Party is obligated to pay; or
v. shall increase the amount of capital or liquidity maintained or required or requested or directed to be maintained by any Affected Party; and the result of any of the foregoing is or would be, in each case, as determined by the applicable Purchaser Agent or the applicable Affected Party:
(A) to increase the cost to (or to impose a cost on on) (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, any Enhancement Agreement or any commitment (hereunder or under any Liquidity Agreement or any Enhancement Agreement) of such Affected Party with respect to any of the foregoing, or (2) any Purchaser Agent or Administrative Agent for continuing its or the Seller’s relationship with any Investor,Purchaser;
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement, any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement, ) with respect thereto; or
(C) in the reasonable determination of such Affected Party, (i) to reduce the rate of return on the capital of an such Affected Party as a consequence of its obligations hereunder hereunder, under any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement), including its funding or maintenance of any portion of the Asset Interest, or arising in connection herewith (or therewith) to a level below that which such Affected Party could otherwise have achievedachieved hereunder or thereunder or (ii) to increase the liquidity required of such Affected Party as a consequence of its obligations hereunder or under any Liquidity Agreement or any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement), including its funding or maintenance of any portion of the Asset Interest, or arising in connection herewith (or therewith) to a level greater than that which such Affected Party could otherwise have achieved hereunder or thereunder, then, subject to Section 4.2(d) below, on the Settlement Date (or during the Liquidation Period or after the occurrence of an Event of Default that has not been waived in accordance with the terms of this Agreement, within thirty days after demand by two (2) Business Days) following its receipt of notice from such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed or by the Affected Party)Administrative Agent or a Purchaser Agent on its behalf) in accordance with Section 4.2(c) below, the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reductionreduction or liquidity increase; provided that such additional amount or amounts shall not be payable with respect to any Regulatory Change for any period in excess of 180 days prior to the date of demand by the Affected Party unless (1) the effect of such Regulatory Change was retroactive by its terms to a period prior to the date of such Regulatory Change, in which case any additional amount or amounts shall be payable for the retroactive period but only if the Affected Party provides its written demand not later than 180 days after such Regulatory Change; or (2) the Affected Party reasonably and in good faith did not believe such Regulatory Change resulted in such an additional or increased cost or charge or such a reduction during such prior period.
(b) b. Each Affected Party will promptly notify the Seller, (or the Administrative Agent and the or a Purchaser Agent for the Purchaser Group of such Affected Partyon its behalf), if applicable, shall use commercially reasonable efforts to notify Seller and Administrative Agent of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, provided that no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) c. In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (it, in its reasonable discretion) , shall deem applicable. Any Affected Party (or the Administrative Agent or a Purchaser Agent on its behalf) when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to and Administrative Agent a written statement of such increased cost or reduced return (including calculation thereof in reasonable detail)return, which statement shallstatement, in the absence of demonstrable manifest error, shall be conclusive and binding upon the Seller.
d. Except as set forth in clause (da) For above, failure or delay on the avoidance part of doubt, (w) any interpretation of FAS 166 or FAS 167 Affected Party (or any successor Accounting Standards Codification SubtopicAdministrative Agent or a Purchaser Agent) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case to demand compensation pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.24.2 shall not constitute a waiver of such Affected Party’s (or the Administrative Agent’s or a Purchaser Agent’s on its behalf) right to demand such compensation.
Appears in 1 contract
Samples: Omnibus Amendment (CHS Inc)
Yield Protection. If (a) If (i) Regulation D or (iib) any Regulatory ChangeChange occurring after November 15, 2002:
(Ai) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the any portion of the Asset Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the any portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for (A) taxes based on, or measured by, net income, or changes in the rate of tax on or determined by reference to the overall net income, of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party’s principal executive office is located and, if such Affected Party’s principal executive office is not in the United States of America, by the jurisdiction where such Affected Party’s principal office in the United States is located or, (B) franchise taxes, taxes on, or in the nature of, doing business taxes or capital taxes); or
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(Ciii) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(Div) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(Ev) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any InvestorPurchaser, in each case, in an amount deemed to be material by such Affected Party,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Georgia Gulf Corp /De/)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:Change occurring after the date hereof
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset any Undivided Interest or Interests owned by or funded by it, if any, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Purchaser's Investments or Earned Discount owned by, made by or owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest any Undivided Interests owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for changes in the rate of tax on the overall net income of such Affected Party imposed by the United States of America or the jurisdiction in which such Affected Party's principal executive office is located); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Partyof, deposits or obligations with or for the account of any Affected Party (or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Partyof), or credit extended by by, any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any such Affected Party; or
(D) shall impose any other condition affecting any Asset Interest Undivided Interests owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(Ax) to increase the cost to or to impose a cost on (1I) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2II) any the Agent for continuing its its, or the Seller’s 's, relationship with any InvestorPurchaser,
(By) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(Cz) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which any such Affected Party could otherwise have achieved, then, then within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forthParty, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party its pro rata share of such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent Seller and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in occurring after the judgment of such Affected Party, is reasonably certain to occur) date hereof which will entitle such Affected Party to compensation pursuant to this Section 4.24.02; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2; provided, an further, however that no Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a be entitled to claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case additional amounts pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.24.02 for any period occurring more than 120 days prior to the date of demand.
Appears in 1 contract
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange occurring after the date hereof:
(Ai) shall subject an Affected Party to any Tax, duty or other charge with respect to the portion of the Asset Interest owned by its Obligations or, as applicable, its Commitment or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding thereforits Liquidity Commitment, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs or Earned Discount owned byObligations, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of its Obligations or, as applicable, its Commitment or its Liquidity Commitment except for (A) Taxes based on, or measured by, net income or net profits, or changes in the portion rate of Tax on or determined by reference to the overall net income or net profits, of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office and/or its applicable lending office is located and, if such Affected Party's principal executive office or its applicable lending office is not in the United States of America, by the jurisdiction where such Affected Party's principal office or applicable lending office is located, (B) franchise Taxes, Taxes on, or in the nature of, doing business Taxes or capital Taxes, or (C) withholding Taxes required for payments made to any foreign entity (other than withholding Taxes imposed by the United States as a result of a change in law after the date hereof and before such foreign entity issues its Commitment or Liquidity Commitment or becomes an assignee of a Lender hereunder), unless such foreign entity fails to deliver to each of the Asset Interest owned by Co-Agents and the Borrower an accurate IRS Form W-8BEN or funded by it W-8ECI (or its obligations or rightsthe applicable successor form), if any, to make Purchases or Reinvestments or to provide funding thereforas applicable; or
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve that was not included in the determination computation of Earned Discount)the applicable Interest Rate, or any special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(Ciii) shall change affect the amount of capital maintained or required or requested or directed expected to be maintained by any Affected Party; or
(Div) shall impose any other condition affecting any Asset Interest Obligation owned or funded in whole or in part by any Affected Party, or its obligations rights or rightsobligations, if any, to make Purchases Loans or Reinvestments or to provide funding thereforLiquidity Fundings; or
(Ev) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, assesses deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be:
(Ax) to increase the cost to or to impose a cost on (1I) an Affected Party funding or making or maintaining any Purchases or ReinvestmentsLoan, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity AgreementFunding, or any commitment of such Affected Party with respect to any of the foregoing, or (2II) any Agent of the Agents for continuing its or the Seller’s Borrower's relationship with any InvestorAffected Party, in each case, in an amount deemed to be material by such Affected Party,
(By) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any the Liquidity Agreement, or
(Cz) in the reasonable determination of such Affected Party, to reduce the rate of return on the such Affected Party's capital of an Affected Party as a consequence of its obligations hereunder Commitment, its Liquidity Commitment or arising in connection herewith the Loans made by it to a level below that which such Affected Party could otherwise have achievedachieved but for the occurrence of such circumstances, then, within thirty days after demand by such Affected Party (which demand shall be made not more than 90 days after the date on which the Affected Party becomes aware of such Regulatory Change and shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller Borrower shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such actual additional or cost, actual increased cost or such actual reduction.
(b) Each Affected Party will promptly notify the SellerBorrower, the Administrative Agent and the Purchaser applicable Co-Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; providedPROVIDED, howeverHOWEVER, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensationcompensation unless such notification is given more than 90 days after the Affected Party becomes aware of such Regulatory Change.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller Borrower the above-referenced certificate (referred to in subsection (a) above) as to such actual increased cost or actual reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the SellerBorrower.
(d) For Each of the avoidance Lenders agrees, and to require each Affected Party to agree that, with reasonable promptness after an officer of doubtsuch Lender or such Affected Party responsible for administering the Transaction Documents becomes aware that it has become an Affected Party under this Section 4.2, is entitled to receive payments under this Section 4.2, or is or has become subject to U.S. withholding Taxes payable by any Loan Party in respect of its investment hereunder, it will, to the extent not inconsistent with any internal policy of such Person or any applicable legal or regulatory restriction, (wi) any interpretation use all reasonable efforts to make, fund or maintain its commitment or investment hereunder through another branch or office of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issuedsuch Affected Party, or (yii) any requesttake such other reasonable measures, ruleif, guideline or directive promulgated by the Bank for International Settlementsas a result thereof, the Basel Committee on Banking Supervision (circumstances which would cause such Person to be an Affected Party under this Section 4.2 would cease to exist, or any successor or similar authority) or United States regulatory authorities, in each case the additional amounts which would otherwise be required to be paid to such Person pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2 would be reduced, or such withholding Taxes would be reduced, and if the making, funding or maintaining of such commitment or investment through such other office or in accordance with such other measures, as the case may be, would not otherwise adversely affect such commitment or investment or the interests of such Person; PROVIDED THAT such Person will not be obligated to utilize such other lending office pursuant to this Section 4.2 unless the Borrower agrees to pay all incremental expenses incurred by such Person as a result of utilizing such other office as described in clause (i) above.
(e) If any Liquidity Bank (other than a Co-Agent) makes a claim for compensation under this Section 4.2, the Borrower may propose an Eligible Assignee to the applicable Co-Agent who is willing to accept an assignment of such Liquidity Bank's Commitment, Liquidity Commitment and outstanding Loans, together with each of its other rights and obligations under the Transaction Documents; PROVIDED THAT any expenses or other amounts which would be owing to such Liquidity Bank pursuant to any indemnification provision hereof (including, if applicable, Section 4.3) shall be payable by the Borrower as if the Borrower had prepaid the Loans of the assigning Lenders rather than such assigning Lenders having assigned their respective interests hereunder. If such proposed Eligible Assignee is acceptable to the applicable Co-Agent (who shall not unreasonably withhold or delay its approval), the claiming Liquidity Bank will be obligated to assign all of its rights and obligations to such proposed Eligible Assignee within ten (10) Business Days after such Co-Agent gives its consent to such proposed Eligible Assignee.
Appears in 1 contract
Samples: Credit and Security Agreement (Quest Diagnostics Inc)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:Change occurring after the date of the Original Purchase Agreement
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the any Asset Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Purchaser's Total Investments or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for changes in the rate of tax on or determined by reference to the overall net income of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange occurring or implemented after the date hereof or, without limiting the generality of the foregoing, any Specified Regulation:
(Ai) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the any Asset Interest owned by owned, maintained or funded by itit (or its participation in any of the forgoing), or any obligations or right to make Purchases or Reinvestments or to provide funding thereforor maintenance therefor (or its participation in any of the foregoing), or shall change the basis of taxation of payments to the Affected Party or other Indemnified Party of any portion of the Invested Amount, CP Costs Purchasers’ Total Investment or Earned Discount Yield owned by, owed to to, funded or funded maintained in whole or in part by it (or its participation in any of the foregoing) or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by owned, maintained or funded by it or its obligations or rights, if any, to make or participate in Purchases or Reinvestments or to provide funding therefor; ortherefor or the maintenance thereof;
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount)reserve, special deposit deposit, compulsory loan, insurance charge or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board or other Governmental Authority to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or;
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(Diii) shall impose any other condition affecting any Asset Interest owned owned, maintained or funded (or participated in) in whole or in part by any Affected Party, or its obligations or rights, if any, to make (or participate in) Purchases or Reinvestments or to provide (or participate in) funding therefor; ortherefor or the maintenance thereof;
(Eiv) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) or similar Person assesses, deposit insurance premiums or similar chargescharges which an Affected Party is obligated to pay; or
(v) shall change the amount of capital or liquidity maintained or required or requested or directed to be maintained by any Affected Party; and the result of any of the foregoing is or would be, in each case, as determined by the applicable Purchaser Agent or the applicable Affected Party:
(A) to increase the cost to (or to impose a cost on on) (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, any Enhancement Agreement or any commitment (hereunder or under any Liquidity Agreement or any Enhancement Agreement) of such Affected Party with respect to any of the foregoing, or (2) a Program Administrator, any Purchaser Agent or Administrative Agent for continuing its or the Seller’s relationship with any Investor,Purchaser;
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement, any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement, ) with respect thereto; or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an such Affected Party or its holding company as a consequence of its obligations hereunder hereunder, under any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement), including its funding or maintenance of any portion of the Asset Interest, or arising in connection herewith (or therewith) to a level below that which such Affected Party or its holding company could otherwise have achieved, achieved hereunder or thereunder (taking into consideration such Affected Party’s policies and the policies of such Affected Party’s holding company with respect to capital adequacy); then, subject to Section 4.2(d) below, on the Settlement Date (or during the Liquidation Period or after the occurrence of an Event of Termination that has not been waived in accordance with the terms of this Agreement, within thirty days after demand by two (2) Business Days) following its receipt of notice from such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed or by the Affected PartyAdministrative Agent or a Purchaser Agent on its behalf) in accordance with Section 4.2(c), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, (or the Administrative Agent and the or a Purchaser Agent for the Purchaser Group of such Affected Partyon its behalf), if applicable, shall promptly notify Seller and Administrative Agent of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, that no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Receivables Purchase Agreement (C. H. Robinson Worldwide, Inc.)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:Change occurring after the date hereof
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the any Asset Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Purchaser's Total Investment or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for (1) taxes based on, or measured by, net income, or changes in the rate of tax on or determined by reference to the overall net income, of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located or, (2) franchise taxes, taxes on, or in the nature of, doing business taxes or capital taxes); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(AI) to increase the cost to or to impose a cost on (1x) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any the Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2y) any the Administrative Agent for continuing its or the Seller’s 's relationship with any Investorthe Purchaser, in each case, in an amount deemed to be material by such Affected Party,
(BII) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any the Liquidity Agreement, or
(CIII) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Receivables Transfer Agreement (Georgia Gulf Corp /De/)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange in Law:
(Ai) shall subject an Affected Party to any Taxduty, duty cost or other charge (other than Taxes, which shall be governed by Section 3.3(e)) with respect to any Investment or interest in the portion of the Asset Interest owned by Receivable Pool or Related Assets owned, maintained or funded by itit (or its participation in any of the forgoing), or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of maintenance therefor (or its participation in any portion of the Invested Amount, CP Costs or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; orforegoing);
(Bii) shall impose, modify modify, or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount)reserve, special deposit deposit, or similar requirement against assets of any Affected Party, deposits deposits, or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board or other Governmental Authority to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or;
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(Diii) shall impose any other condition affecting any Asset Interest owned Investment or the Receivable Pool or Related Assets owned, maintained, or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make (or participate in) Purchases or Reinvestments or to provide (or participate in) funding therefor; ortherefor or the maintenance thereof;
(Eiv) shall change the rate for, or changes the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) or similar Person assesses, deposit insurance premiums premiums, or similar chargescharges which an Affected Party is obligated to pay; or
(v) shall (i) change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party or (ii) subject any Affected Party to any Taxes (other than (A) Indemnified Taxes, and (B) Excluded Taxes) on its Purchases, the Receivable Pool or Related Assets, commitments, or other obligations, or its deposits, reserves, other liabilities, or capital attributable thereto; and the result of any of the foregoing is or would be, in each case, as determined by the applicable Purchaser Agent or the applicable Affected Party:
(A) to increase the cost to (or to impose a cost on on) (1) an Affected Party funding or making or maintaining any Purchases or ReinvestmentsPurchases, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, any Enhancement Agreement, or any commitment (hereunder or under any Liquidity Agreement or any Enhancement Agreement) of such Affected Party with respect to any of the foregoing, or (2) the Collateral SK 28677 0004 8417431 v39 Agent, any Purchaser Agent, or the Administrative Agent for continuing its or the Seller’s relationship with any Investor,Purchaser;
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement, any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement, ) with respect thereto; or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an such Affected Party as a consequence of its obligations hereunder hereunder, under any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement), including its funding or maintenance of any portion of any Investment or the Receivable Pool or Related Assets, or arising in connection herewith (or therewith) to a level below that which such Affected Party could otherwise have achievedachieved hereunder or thereunder, then, within thirty days after demand by three (3) Business Days following its receipt of notice from such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed or by the Affected PartyAdministrative Agent or a Purchaser Agent on its behalf) in accordance with Section 4.2(c), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will (or the Administrative Agent or a Purchaser Agent on its behalf), shall use commercially reasonable efforts to promptly notify the Servicer (on behalf of the Seller, ) and the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has actual knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure that the Seller shall not be required to give or delay in giving such notification shall adversely affect the rights of any compensate an Affected Party pursuant to this Section 4.2 for any increased costs or reductions incurred more than 180 days prior to the date that such Affected Party notifies the Seller of the Change in Law giving rise to such compensationincreased costs or reductions and of such Affected Party’s intention to claim compensation therefor; provided, further, that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180 day period referred to above shall be extended to include the period of retroactive effect thereof.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (it, in its reasonable sole discretion) , shall deem applicable. Any Affected Party (or the Administrative Agent or a Purchaser Agent on its behalf) when making a claim under this Section 4.2 shall submit to the Seller Servicer (on behalf of the certificate (referred to in subsection (aSeller) above) as to and the Administrative Agent a written statement of such increased cost or reduced return (including calculation thereof in reasonable detail)return, which statement shallstatement, in the absence of demonstrable manifest error, shall be conclusive and binding upon the Sellerbinding.
(d) For Except as set forth in Section 4.2(b), no failure or delay on the avoidance part of doubt, (w) any interpretation of FAS 166 or FAS 167 Affected Party (or the Administrative Agent or any successor Accounting Standards Codification SubtopicPurchaser Agent) by to demand compensation pursuant to this Section 4.2 shall not constitute a waiver of such Affected Party’s (or the Financial Accounting Standards Board Administrative Agent’s or any Purchaser Agent’s on its behalf) right to demand such compensation or otherwise adversely affect the rights of any Affected Party to such compensation.
(e) The Seller acknowledges that any Affected Party may institute measures in anticipation of a Change in Law (including, without limitation, the imposition of internal charges on such Affected Party’s interests or obligations under this Agreement), and any pronouncement, interpretation may commence allocating charges to or release by seeking compensation from the International Accounting Standards Board, (x) any request, rule, guideline or directive Seller under or issued this Section 4.2 in connection with such measures, in advance of the Xxxx-Xxxxx Xxxx Street Reform effective date of such Change in Law, and Consumer Protection Act the Seller agrees to pay such charges or compensation to such Affected Party (whether or not having the force except for Taxes contemplated by clause (ii) of lawSection 4.2(a)(v)), regardless to the extent such charges or compensation would otherwise be payable by the Seller under this Section 4.2 after such effective date of such Change in Law, following demand therefor without regard to whether such effective date has occurred but only to the extent of, and on or after such Affected Party’s measures must be implemented prior to such effective date at the demand of the date enacted, adopted applicable prudential regulator. The Seller further acknowledges that any charge or issued, or (y) any request, rule, guideline or directive promulgated compensation demanded hereunder may take the form of a monthly charge to be assessed by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2Affected Party.
Appears in 1 contract
Yield Protection. (a) If after the date hereof (i) Regulation D of the Board of Governors of the Federal Reserve System or (ii) any Regulatory Change:
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset Interest any Loan owned by or funded by it, or any obligations or right to make Purchases or Reinvestments Loans or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs interest or Earned Discount owned by, principal owed with respect to or Loans funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or Loans funded by it or its obligations or rights, if any, to make Purchases or Reinvestments Loans or to provide funding therefortherefor (except for changes in the rate of tax on the overall net income of such Affected Party imposed by the United States of America or by any jurisdiction in which such Affected Party is organized or maintains its principal executive office or an office from which it makes Loans); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discountinterest on the Loans), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board to be an affiliateAffiliate) of any Affected PartyParty (to the extent such Affiliate is providing funding, liquidity or credit enhancement for the Loans), or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses deposit insurance premiums or similar charges; or
(E) shall impose any other condition affecting any Asset Interest Loan owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments Loans or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Ace Cash Express Inc/Tx)
Yield Protection. (a) If any Regulatory Change (including a change to Regulation D under the Securities Exchange Act of 1933, as amended) occurring after the date hereof:
(i) Regulation D or (ii) any Regulatory Change:
(A) shall subject an any Affected Party to any Taxtax, duty or other charge with respect to the any portion of the Asset Interest Obligations owned by or funded by itit or with respect to its unused "Purchase Commitment" under the Liquidity Agreement or the Credit Support Agreement, as applicable (the "Unused Commitment") (other than taxes, duties or any obligations charges based on income or right to make Purchases or Reinvestments or to provide funding thereforgross receipts), or shall change the basis of taxation (other than taxes based on income or gross receipts) of payments to the Affected Party of any portion of yield on or reductions to the Invested Amount, CP Costs or Earned Discount owned by, Obligations owed to or with respect to the Obligations funded in whole or in part by it or any other amounts due under this Agreement in respect of the any portion of the Asset Interest Obligations owned by or funded by it or its obligations or rights, if any, to make Purchases fund Advances or Reinvestments in respect of its Unused Commitment (except for changes in the rate of tax on the overall net income or to provide funding therefor; orgross receipts of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located);
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any an Affected Party, or credit extended by to any Affected Party; or;
(Ciii) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or;
(Div) shall impose any other condition affecting any Asset Interest portion of the Obligations owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments pay any portion of the Unused Commitment or to provide funding therefor; or
(Ev) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a any successor thereto) assesses, assesses deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be:
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases portion of the Obligations, or Reinvestments, any purchases, reinvestments, reinvestments or loans or other extensions of credit under any the Liquidity Agreement, the Credit Support Agreement or any Transaction Document or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,;
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement Agreement, or under any the Liquidity Agreement, the Credit Support Agreement or any Transaction Document with respect thereto; or
(C) in the reasonable sole determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder hereunder, under the Liquidity Agreement or under the Credit Support Agreement or arising in connection herewith to a level below that which such the Affected Party could otherwise have achieved, then, ; then within thirty 30 days after demand by such Affected Party (which demand shall be accompanied by a certificate statement setting forth, forth in reasonable detail, detail the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Partydemand), the Seller Borrower shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction; provided such additional amount or amounts shall not be payable with respect to any period in excess of 180 days prior to the date of demand by the Affected Party unless (1) the effect of the Regulatory Change is retroactive by its terms to a period prior to the date of the Regulatory Change, in which case any additional amount or amounts shall be payable for the retroactive period but only if the Affected Party provides its written demand not later than 180 days after the Regulatory Change; or (2) the Affected Party reasonably and in good faith did not believe the Regulatory Change resulted in such an additional or increased cost or such a reduction.
(b) Each Affected Party will promptly notify the SellerBorrower, the Administrative Agent Trustee and the Purchaser Facility Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has actual knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to any compensation pursuant to this Section 4.2Section; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensationcompensation unless such failure or delay results in a Material Adverse Effect.
(c) In determining any amount provided for or referred to in this Section 4.2Section, an Affected Party may use any reasonable averaging and or attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretionsole discretion exercised in good faith) shall deem applicableapplicable and which it applies on a consistent basis. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller Borrower and the certificate (referred to in subsection (a) above) Facility Agent a statement as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable manifest error, be conclusive and binding upon the SellerBorrower and the Facility Agent.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Yield Protection. (a) If (i) Regulation D or D, (ii) any law or regulation relating to deposit insurance or (iii) any Regulatory Change:Change occurring after the date hereof
(A) shall subject an Affected Party to any Taxtax (other than income tax), duty or other charge with respect to the portion of the Asset Certificate, any Undivided Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Investments or Earned Discount Return owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement or any of the other Transaction Documents in respect of the portion of the Asset Certificate, any Undivided Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for changes in the rate of tax on the overall net income of such Affected Party); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned DiscountReturn), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board to be an affiliateAffiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting the Certificate, any Asset Undivided Interest owned or funded in whole or in part by any Affected Party, Party or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange including any Specified Regulation:
(Ai) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the any Asset Interest owned by owned, maintained or funded by itit (or its participation in any of the forgoing), or any obligations or right to make Purchases or Reinvestments or to provide funding thereforor maintenance therefor (or its participation in any of the foregoing), or shall change the basis of taxation of payments to the Affected Party or other Indemnified Party of any portion of the Invested Amount, CP Costs Total Investment or Earned Discount Yield owned by, owed to to, funded or funded maintained in whole or in part by it (or its participation in any of the foregoing) or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by owned, maintained or funded by it or its obligations or rights, if any, to make or participate in Purchases or Reinvestments or to provide funding therefor; ortherefor or the maintenance thereof;
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount)reserve, special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board or other Governmental Authority to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or;
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(Diii) shall impose any other condition affecting any Asset Interest owned owned, maintained or funded (or participated in) in whole or in part by any Affected Party, or its obligations or rights, if any, to make (or participate in) Purchases or Reinvestments or to provide (or to participate in) funding therefor; ortherefor or the maintenance thereof;
(Eiv) shall change increase the rate for, or changes the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) or similar Person assesses, deposit insurance premiums or similar chargescharges which an Affected Party is obligated to pay; or
(v) shall increase the amount of capital or liquidity maintained or required or requested or directed to be maintained by any Affected Party; and the result of any of the foregoing is or would be, in each case, as determined by the applicable Purchaser Agent or the applicable Affected Party:
(A) to increase the cost to (or to impose a cost on on) (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, any Enhancement Agreement or any commitment (hereunder or under any Liquidity Agreement or any Enhancement Agreement) of such Affected Party with respect to any of the foregoing, or (2) any Purchaser Agent or Administrative Agent for continuing its or the Seller’s relationship with any Investor,Purchaser;
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement, any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement, ) with respect thereto; or
(C) in the reasonable determination of such Affected Party, (i) to reduce the rate of return on the capital of an such Affected Party as a consequence of its obligations hereunder hereunder, under any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement), including its funding or maintenance of any portion of the Asset Interest, or arising in connection herewith (or therewith) to a level below that which such Affected Party could otherwise have achievedachieved hereunder or thereunder or (ii) to increase the liquidity required of such Affected Party as a consequence of its obligations hereunder or under any Liquidity Agreement or any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement), including its funding or maintenance of any portion of the Asset Interest, or arising in connection herewith (or therewith) to a level greater than that which such Affected Party could otherwise have achieved hereunder or thereunder, then, subject to Section 4.2(d) below, on the Settlement Date (or during the Liquidation Period or after the occurrence of an Event of Default that has not been waived in accordance with the terms of this Agreement, within thirty days after demand by two (2) Business Days) following its receipt of notice from such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed or by the Affected Party)Administrative Agent or a Purchaser Agent on its behalf) in accordance with Section 4.2(c) below, the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reductionreduction or liquidity increase; provided that such additional amount or amounts shall not be payable with respect to any Regulatory Change for any period in excess of 180 days prior to the date of demand by the Affected Party unless (1) the effect of such Regulatory Change was retroactive by its terms to a period prior to the date of such Regulatory Change, in which case any additional amount or amounts shall be payable for the retroactive period but only if the Affected Party provides its written demand not later than 180 days after such Regulatory Change; or (2) the Affected Party reasonably and in good faith did not believe such Regulatory Change resulted in such an additional or increased cost or charge or such a reduction during such prior period.
(b) Each Affected Party will promptly notify the Seller, (or the Administrative Agent and the or a Purchaser Agent for the Purchaser Group of such Affected Partyon its behalf), if applicable, shall use commercially reasonable efforts to notify Seller and Administrative Agent of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, provided that no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (it, in its reasonable discretion) , shall deem applicable. Any Affected Party (or the Administrative Agent or a Purchaser Agent on its behalf) when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to and Administrative Agent a written statement of such increased cost or reduced return (including calculation thereof in reasonable detail)return, which statement shallstatement, in the absence of demonstrable manifest error, shall be conclusive and binding upon the Seller.
(d) For Except as set forth in clause (a) above, failure or delay on the avoidance part of doubt, (w) any interpretation of FAS 166 or FAS 167 Affected Party (or any successor Accounting Standards Codification SubtopicAdministrative Agent or a Purchaser Agent) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case to demand compensation pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.24.2 shall not constitute a waiver of such Affected Party’s (or the Administrative Agent’s or a Purchaser Agent’s on its behalf) right to demand such compensation.
Appears in 1 contract
Yield Protection. (a) If any Regulatory Change (including a change to Regulation D under the Securities Exchange Act of 1933, as amended) occurring after the date hereof:
(i) Regulation D or (ii) any Regulatory Change:
(A) shall subject an any Affected Party to any Taxtax, duty or other charge with respect to the any portion of the Asset Interest Obligations owned by or funded by itit or with respect to its unused commitment under the applicable Liquidity Agreement (the "Unused Commitment") (other than taxes, duties or any obligations charges based on income or right to make Purchases or Reinvestments or to provide funding thereforgross receipts), or shall change the basis of taxation (other than taxes based on income or gross receipts) of payments to the Affected Party of any portion of yield on or reductions to the Invested Amount, CP Costs or Earned Discount owned by, Obligations owed to or with respect to the Obligations funded in whole or in part by it or any other amounts due under this Agreement in respect of the any portion of the Asset Interest Obligations owned by or funded by it or its obligations or rights, if any, to make fund Note Purchases or Reinvestments in respect of its Unused Commitment (except for changes in the rate of tax on the overall net income or to provide funding thereforgross receipts of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located); or
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discountyield on the Obligations), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any an Affected Party, or credit extended by to any Affected Party; or
(Ciii) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or;
(Div) shall impose any other condition affecting any Asset Interest portion of the Obligations owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments pay any portion of the Unused Commitment or to provide funding therefor; or
(Ev) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a any successor thereto) assesses, assesses deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be:
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases portion of the Obligations, or Reinvestments, any purchases, reinvestments, reinvestments or loans or other extensions of credit under the applicable Liquidity Agreement or any Liquidity Agreement, other Transaction Document or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,;
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement, or under the applicable Liquidity Agreement or under any Liquidity Agreement, other Transaction Document with respect thereto; or
(C) in the reasonable sole determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or under the applicable Liquidity Agreement or arising in connection herewith to a level below that which such the Affected Party could otherwise have achieved, then, ; then within thirty 30 days after demand by such Affected Party (which demand shall be accompanied by a certificate statement setting forth, forth in reasonable detail, detail the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Partydemand), the Seller Issuer shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction; provided such additional amount or amounts shall not be payable with respect to any period in excess of 180 days prior to the date of demand by the Affected Party unless (1) the effect of the Regulatory Change is retroactive by its terms to a period prior to the date of the Regulatory Change, in which case any additional amount or amounts shall be payable for the retroactive period but only if the Affected Party provides its written demand not later than 180 days after the Regulatory Change, or (2) the Affected Party reasonably and in good faith did not believe the Regulatory Change resulted in such an additional or increased cost or such a reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent Issuer and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, Required Note Purchasers of any event of which it has actual knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to any compensation pursuant to this Section 4.22.16; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensationcompensation unless such failure or delay results in a Material Adverse Effect.
(c) In determining any amount provided for or referred to in this Section 4.22.16, an Affected Party may use any reasonable averaging and or attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretionsole discretion exercised in good faith) shall deem applicableapplicable and which it applies on a consistent basis. Any Affected Party when making a claim under this Section 4.2 2.16 shall submit to the Seller the certificate (referred to in subsection (a) above) Issuer a statement as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable manifest error, be conclusive and binding upon the SellerIssuer.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Warehouse Note Purchase and Security Agreement (Nelnet Inc)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange occurring after June 19, 2000:
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs Amount or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for (1) taxes based on, or measured by, net income, or changes in the rate of tax on or determined by reference to the overall net income, of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located or, (2) franchise taxes, taxes on, or in the nature of, doing business taxes or capital taxes); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any the Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any the Administrative Agent for continuing its or the Seller’s 's relationship with any Investorthe Purchaser, in each case, in an amount deemed to be material by such Affected Party,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any the Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction; PROVIDED, HOWEVER, the Seller shall only be required to compensate any such Affected Party for such amounts to the extent that such Affected Party is requiring all of its other similarly situated customers to compensate it for such amounts.
(b) Each Affected Party will promptly notify the Seller, Seller and the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section SECTION 4.2; providedPROVIDED, howeverHOWEVER, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section SECTION 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section SECTION 4.2 shall submit to the Seller the certificate (referred to in subsection SUBSECTION (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Lennox International Inc)
Yield Protection. (a) If any Regulatory Change (including a change to Regulation D under the Securities Exchange Act of 1933, as amended) occurring after the date hereof:
(i) Regulation D or (ii) any Regulatory Change:
(A) shall subject an any Affected Party to any Taxtax, duty or other charge with respect to the any portion of the Asset Interest Obligations owned by or funded by itit or with respect to its unused commitment under the applicable Liquidity Agreement (the "Unused Commitment") (other than taxes, duties or any obligations charges based on income or right to make Purchases or Reinvestments or to provide funding thereforgross receipts), or shall change the basis of taxation (other than taxes based on income or gross receipts) of payments to the Affected Party of any portion of yield on or reductions to the Invested Amount, CP Costs or Earned Discount owned by, Obligations owed to or with respect to the Obligations funded in whole or in part by it or any other amounts due under this Agreement in respect of the any portion of the Asset Interest Obligations owned by or funded by it or its obligations or rights, if any, to make fund Note Purchases or Reinvestments in respect of its Unused Commitment (except for changes in the rate of tax on the overall net income or to provide funding therefor; orgross receipts of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located);
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discountyield on the Obligations), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any an Affected Party, or credit extended by to any Affected Party; or;
(Ciii) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or;
(Div) shall impose any other condition affecting any Asset Interest portion of the Obligations owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments pay any portion of the Unused Commitment or to provide funding therefor; or
(Ev) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a any successor thereto) assesses, assesses deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be:
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases portion of the Obligations, or Reinvestments, any purchases, reinvestments, reinvestments or loans or other extensions of credit under the applicable Liquidity Agreement or any Liquidity Agreement, other Transaction Document or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,;
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement, or under the applicable Liquidity Agreement or under any Liquidity Agreement, other Transaction Document with respect thereto; or
(C) in the reasonable sole determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or under the applicable Liquidity Agreement or arising in connection herewith to a level below that which such the Affected Party could otherwise have achieved, then, ; then within thirty 30 days after demand by such Affected Party (which demand shall be accompanied by a certificate statement setting forth, forth in reasonable detail, detail the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Partydemand), the Seller Issuer shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction; provided such additional amount or amounts shall not be payable with respect to any period in excess of 180 days prior to the date of demand by the Affected Party unless (1) the effect of the Regulatory Change is retroactive by its terms to a period prior to the date of the Regulatory Change, in which case any additional amount or amounts shall be payable for the retroactive period but only if the Affected Party provides its written demand not later than 180 days after the Regulatory Change, or (2) the Affected Party reasonably and in good faith did not believe the Regulatory Change resulted in such an additional or increased cost or such a reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent Issuer and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, Required Note Purchasers of any event of which it has actual knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to any compensation pursuant to this Section 4.22.16; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensationcompensation unless such failure or delay results in a Material Adverse Effect.
(c) In determining any amount provided for or referred to in this Section 4.22.16, an Affected Party may use any reasonable averaging and or attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretionsole discretion exercised in good faith) shall deem applicableapplicable and which it applies on a consistent basis. Any Affected Party when making a claim under this Section 4.2 2.16 shall submit to the Seller the certificate (referred to in subsection (a) above) Issuer a statement as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable manifest error, be conclusive and binding upon the SellerIssuer.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Warehouse Note Purchase and Security Agreement (Nelnet Inc)
Yield Protection. (a) If (i) If, after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, including Regulation D of the Board of Governors of the Federal Reserve System, 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 Purchaser or any Person controlling any thereof, any permitted assignee under this Agreement or any Person maintaining any liquidity, purchase or credit enhancement facility for any Purchaser (iieach of which being an "Affected Party") with any Regulatory Change:request or directive (whether or not having the force -------------- of law) of any such authority, central bank or comparable agency,
(A) shall subject an Affected Party to any Taxtax (except for taxes on the overall net income of such Affected Party), duty or other charge with respect to the portion of the Asset Interest owned by or funded by it, Receivable Interests or any obligations or right to make Purchases or Reinvestments or to provide funding thereforpurchases, or shall change the basis of taxation of payments to the an Affected Party of any portion of the Invested Amount, CP Costs its Capital or Earned Discount owned by, owed to or funded in whole or in part by it Yield or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it its Capital or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding thereforpurchases; or
(B) shall impose, modify or deem applicable any reserve requirement (including, without limitation, any reserve requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding any reserve requirement, if any, included in the determination of Earned DiscountYield), special deposit or similar requirement against assets of any Affected Partyof, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Partyof, or credit extended by by, any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned the Receivable Interests or funded in whole or in part by any Affected Party, or its obligations or the Purchaser's rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar chargespurchases; and the result of any of the foregoing is or would be
(Ai) to increase the cost to, or, in the case of Regulation D referred to or above, to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoingReceivable Interest, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(Bii) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreementwith respect thereto, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, then within thirty ten days after demand by such Affected Party (which demand shall be accompanied by a certificate statement setting forth, in reasonable detail, forth the basis of for such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Partydemand), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost incurred or such reduction suffered.
(b) If an Affected Party shall reasonably determine that the adoption of any applicable law, rule, regulation, directive or guideline regarding capital adequacy, or any change in or phase-in of any applicable law, rule, regulation, directive or guideline 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 an Affected Party 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 the capital of any Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which any such Affected Party could have achieved but for such adoption, change or compliance (taking into consideration the policies of such Affected Party with respect to capital adequacy) by an amount deemed by such Affected Party to be material, then from time to time, within ten days after demand by such Affected Party, the Seller shall pay to such Affected Party such additional amount or amounts as will compensate such Affected Party for such reduction.
(bc) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, Seller of any event of which it has knowledge (including any future event that, in occurring after the judgment of such Affected Party, is reasonably certain to occur) date hereof which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure 2.08. If an Affected Party fails to give or delay in giving such notification shall adversely affect the rights notice within 90 days after it obtains actual knowledge of any such event and such result, such Affected Party shall be entitled to compensation pursuant to this Section 2.08 only to the extent such compensationadditional amount or reduction accrues on or after the date 90 days prior to the date on which such Affected Party gives such notice.
(cd) In determining any amount provided for or referred to in this Section 4.22.08, an the Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicablemethods. Any Affected Party when making a claim under this Section 4.2 2.08 shall submit to the Seller the a certificate (referred to in subsection (a) above) as to such additional or increased cost or reduced return (including calculation thereof in reasonable detail)reduction, which statement shall, in the absence of certificate shall be conclusive absent demonstrable error; provided, be conclusive and binding upon that the Sellerfailure to deliver any such certificate shall not affect the Affected Party's right to payment hereunder unless notice as required by Section 2.08(c) has not been given.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Georgia Pacific Corp)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange occurring after the date hereof:
(A) shall subject an Affected Party to any Tax, duty or other charge with respect to the portion of the Asset Interest owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs or Earned Discount owned by, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or;
(CB) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or;
(DC) shall impose any other condition affecting any Asset Interest owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(ED) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be:
(Ax) to increase the cost to (or in the case of Regulation D referred to above, to impose a cost on (1on) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any the Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(By) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement Agreement, or under any the Liquidity AgreementAgreement with respect thereto, or
(Cz) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achievedachieved but for Regulation D or such Regulatory Change, then, then within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate statement setting forth, in reasonable detail, forth the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Partydemand), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction. This Section 4.02(a) shall not apply to taxes.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent Seller and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, Administrator of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.24.02; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Charming Shoppes Inc)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange including any Specified Regulation:
(Ai) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the any Asset Interest owned by owned, maintained or funded by itit (or its participation in any of the foregoing), or any obligations or right to make Purchases or Reinvestments or to provide funding thereforor maintenance therefor (or its participation in any of the foregoing), or shall change the basis of taxation of payments to the Affected Party or other Indemnified Party of any portion of the Invested Amount, CP Costs Total Investment or Earned Discount Yield owned by, owed to to, funded or funded maintained in whole or in part by it (or its 755931971 16509877 participation in any of the foregoing) or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by owned, maintained or funded by it or its obligations or rights, if any, to make or participate in Purchases or Reinvestments or to provide funding therefor; ortherefor or the maintenance thereof;
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount)reserve, special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board or other Governmental Authority to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or;
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(Diii) shall impose any other condition affecting any Asset Interest owned owned, maintained or funded (or participated in) in whole or in part by any Affected Party, or its obligations or rights, if any, to make (or participate in) Purchases or Reinvestments or to provide (or to participate in) funding therefor; ortherefor or the maintenance thereof;
(Eiv) shall change increase the rate for, or changes the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) or similar Person assesses, deposit insurance premiums or similar chargescharges which an Affected Party is obligated to pay; or
(v) shall increase the amount of capital or liquidity maintained or required or requested or directed to be maintained by any Affected Party; and the result of any of the foregoing is or would be, in each case, as determined by the applicable Purchaser Agent or the applicable Affected Party:
(A) to increase the cost to (or to impose a cost on on) (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, any Enhancement Agreement or any commitment (hereunder or under any Liquidity Agreement or any Enhancement Agreement) of such Affected Party with respect to any of the foregoing, or (2) any Purchaser Agent or Administrative Agent for continuing its or the Seller’s relationship with any Investor,Purchaser;
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement, any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement, ) with respect thereto; or
(C) in the reasonable determination of such Affected Party, (i) to reduce the rate of return on the capital of an such Affected Party as a consequence of its obligations hereunder hereunder, under any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement), including its funding or maintenance of any portion of the Asset Interest, or arising in connection herewith (or therewith) to a level below that which such Affected Party could otherwise have achievedachieved hereunder or thereunder or (ii) to increase the liquidity required of such Affected Party as a consequence of its obligations hereunder or under any Liquidity Agreement or any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement), including 755931971 16509877 its funding or maintenance of any portion of the Asset Interest, or arising in connection herewith (or therewith) to a level greater than that which such Affected Party could otherwise have achieved hereunder or thereunder, then, subject to Section 4.2(d) below, on the Settlement Date (or during the Liquidation Period or after the occurrence of an Event of Default that has not been waived in accordance with the terms of this Agreement, within thirty days after demand by two (2) Business Days) following its receipt of notice from such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed or by the Affected Party)Administrative Agent or a Purchaser Agent on its behalf) in accordance with Section 4.2(c) below, the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reductionreduction or liquidity increase; provided that such additional amount or amounts shall not be payable with respect to any Regulatory Change for any period in excess of 180 days prior to the date of demand by the Affected Party unless (1) the effect of such Regulatory Change was retroactive by its terms to a period prior to the date of such Regulatory Change, in which case any additional amount or amounts shall be payable for the retroactive period but only if the Affected Party provides its written demand not later than 180 days after such Regulatory Change; or (2) the Affected Party reasonably and in good faith did not believe such Regulatory Change resulted in such an additional or increased cost or charge or such a reduction during such prior period.
(b) Each Affected Party will promptly notify the Seller, (or the Administrative Agent and the or a Purchaser Agent for the Purchaser Group of such Affected Partyon its behalf), if applicable, shall use commercially reasonable efforts to notify Seller and Administrative Agent of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, provided that no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (it, in its reasonable discretion) , shall deem applicable. Any Affected Party (or the Administrative Agent or a Purchaser Agent on its behalf) when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to and Administrative Agent a written statement of such increased cost or reduced return (including calculation thereof in reasonable detail)return, which statement shallstatement, in the absence of demonstrable manifest error, shall be conclusive and binding upon the Seller.
(d) For Except as set forth above in this Section 4.2, failure or delay on the avoidance part of doubt, (w) any interpretation of FAS 166 or FAS 167 Affected Party (or any successor Accounting Standards Codification SubtopicAdministrative Agent or a Purchaser Agent) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case to demand compensation pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.24.2 shall not constitute a waiver of such Affected Party’s (or the Administrative Agent’s or a Purchaser Agent’s on its behalf) right to demand such compensation.
Appears in 1 contract
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange occurring after the date hereof:
(Ai) shall subject an Affected Party to any Tax, duty or other charge with respect to the portion of the Asset Interest owned by its Obligations or, as applicable, its Commitment or funded by itits Liquidity Commitment, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs or Earned Discount owned byObligations, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it its Obligations or, as applicable, its Commitment or its obligations Liquidity Commitment except, in each case, for Taxes other than capital taxes imposed on such Affected Party’s loans, loan principal, Letters of Credit, commitments, or rightsother obligations, if anyor its deposits, to make Purchases reserves, other liabilities or Reinvestments or to provide funding thereforcapital attributable thereto; or
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve that was not included in the determination computation of Earned Discount)the applicable Interest Rate, or any special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(Ciii) shall change affect the amount of capital maintained or required or requested or directed expected to be maintained by any Affected Party; or
(Div) shall impose any other condition affecting any Asset Interest Obligation owned or funded in whole or in part by any Affected Party, or its obligations rights or rightsobligations, if any, to make Purchases Loans or Reinvestments Liquidity Fundings or to provide funding thereforissue or participate in Letters of Credit; or
(Ev) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, assesses deposit insurance premiums or similar charges; or
(vi) shall require any Conduit to be consolidated for financial accounting purposes with any other Person; and the result of any of the foregoing is or would be
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.:
Appears in 1 contract
Samples: Credit and Security Agreement (Quest Diagnostics Inc)
Yield Protection. (a) If any Regulatory Change (including a change to Regulation D under the Securities Exchange Act of 1933, as amended) occurring after the date hereof:
(i) Regulation D or (ii) any Regulatory Change:
(A) shall subject an any Affected Party to any Taxtax, duty or other charge with respect to the any portion of the Asset Interest Obligations owned by or funded by itit or with respect to its unused "Purchase Commitment" under the Liquidity Agreement or the Credit Support Agreement, as applicable (the "Unused Commitment") (other than taxes, duties or any obligations charges based on income or right to make Purchases or Reinvestments or to provide funding thereforgross receipts), or shall change the basis of taxation (other than taxes based on income or gross receipts) of payments to the Affected Party of any portion of yield on or reductions to the Invested Amount, CP Costs or Earned Discount owned by, Obligations owed to or with respect to the Obligations funded in whole or in part by it or any other amounts due under this Agreement in respect of the any portion of the Asset Interest Obligations owned by or funded by it or its obligations or rights, if anyany to fund Advances or in respect of its Unused Commitment (except for changes in the rate of tax on the overall net income or gross receipts of such Affected Party imposed by the United States of America, to make Purchases or Reinvestments or to provide funding therefor; orby the jurisdiction in which such Affected Party's principal executive office is located and, if such Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located);
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any an Affected Party, or credit extended by to any Affected Party; or;
(Ciii) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or;
(Div) shall impose any other condition affecting any Asset Interest portion of the Obligations owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments pay any portion of the Unused Commitment or to provide funding therefor; or
(Ev) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a any successor thereto) assesses, assesses deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be:
(A) to increase the cost to or to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases portion of the Obligations, or Reinvestments, any purchases, reinvestments, reinvestments or loans or other extensions of credit under any the Liquidity Agreement, the Credit Support Agreement or any Transaction Document or any commitment of such Affected Party with respect to any of the foregoing, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,;
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement Agreement, or under any the Liquidity Agreement, the Credit Support Agreement or any Transaction Document with respect thereto; or
(C) in the reasonable sole determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder hereunder, under the Liquidity Agreement or under the Credit Support Agreement or arising in connection herewith to a level below that which such the Affected Party could otherwise have achieved, then, ; then within thirty 30 days after demand by such Affected Party (which demand shall be accompanied by a certificate statement setting forth, forth in reasonable detail, detail the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Partydemand), the Seller Borrower shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction; provided such additional amount or amounts shall not be payable with respect to any period in excess of 180 days prior to the date of demand by the Affected Party unless (1) the effect of the Regulatory Change is retroactive by its terms to a period prior to the date of the Regulatory Change, in which case any additional amount or amounts shall be payable for the retroactive period but only if the Affected Party provides its written demand not later than 180 days after the Regulatory Change; or (2) the Affected Party reasonably and in good faith did not believe the Regulatory Change resulted in such an additional or increased cost or such a reduction.
(b) Each Affected Party will promptly notify the SellerBorrower, the Administrative Agent Trustee and the Purchaser Facility Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has actual knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to any compensation pursuant to this Section 4.2Section; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensationcompensation unless such failure or delay results in a Material Adverse Effect.
(c) In determining any amount provided for or referred to in this Section 4.2Section, an Affected Party may use any reasonable averaging and or attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretionsole discretion exercised in good faith) shall deem applicableapplicable and which it applies on a consistent basis. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller Borrower and the certificate (referred to in subsection (a) above) Facility Agent a statement as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable manifest error, be conclusive and binding upon the SellerBorrower and the Facility Agent.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory Change:
(Aa) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the its portion of the Asset Interest owned by Obligations or, as applicable, its Commitment or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding thereforits Liquidity Commitment, or shall change the basis of taxation of payments to the Affected Party of any portion of the Invested Amount, CP Costs or Earned Discount owned byObligations, owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the its portion of the Asset Interest owned by or funded by it Obligations or, as applicable, its Commitment or its obligations Liquidity Commitment except for (1) taxes based on, or rightsmeasured by, net income, or changes in the rate of tax on or determined by reference to the overall net income, of such Affected Party imposed by the United States of America, by the jurisdiction in which such Affected Party's principal executive office is located and, if anysuch Affected Party's principal executive office is not in the United States of America, by the jurisdiction where such Affected Party's principal office in the United States is located, (2) franchise taxes, taxes on, or in the nature of, doing business taxes or capital taxes, or (3) withholding taxes required for payments made to make Purchases any foreign entity which, at the time such foreign entity issues its Commitment or Reinvestments Liquidity Commitment or becomes an assignee of a Lender hereunder, fails to provide funding therefordeliver to the Agent and the Borrower an accurate IRS Form 1001 or 4224 (or successor form), as applicable; or
(Bb) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discountinterest), special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or
(Cc) shall change affect the amount of capital maintained or required or requested or directed expected to be maintained by any Affected Party; or
(Dd) shall impose any other condition affecting any Asset Interest Obligation owned or funded in whole or in part by any Affected Party, or its obligations rights or rightsobligations, if any, to make Purchases Loans or Reinvestments or to provide funding thereforLiquidity Fundings; or
(Ee) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, assesses deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be:
(Ax) to increase the cost to or to impose a cost on (1I) an Affected Party funding or making or maintaining any Purchases or ReinvestmentsLoan, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity AgreementFunding, or any commitment of such Affected Party with respect to any of the foregoing, or (2II) any the Agent for continuing its or the Seller’s Borrower's relationship with any InvestorAffected Party, in each case, in an amount deemed to be material by such Affected Party,
(By) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any the Liquidity Agreement, or
(Cz) in the reasonable determination of such Affected Party, to reduce the rate of return on the such Affected Party's capital of an Affected Party as a consequence of its obligations hereunder Commitment, its Liquidity Commitment or arising in connection herewith the Loans made by it to a level below that which such Affected Party could otherwise have achievedachieved but for the occurrence of such circumstances, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller Borrower shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such actual additional or cost, actual increased cost or such actual reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Credit and Security Agreement (Precision Castparts Corp)
Yield Protection. (a) If (i) If, after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, including Regulation D of the Board of Governors of the Federal Reserve System, 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 Secondary Purchaser or any Person controlling any Secondary Purchaser, or any permitted assignee under this Agreement (iieach of which being an "Affected Party") with any Regulatory Change:request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency,
(A) shall subject an Affected Party to any Taxtax (except for taxes on the overall net income of such Affected Party), duty or other charge with respect to the portion of the Asset Interest owned by or funded by it, Receivable Interests or any obligations or right to make Purchases or Reinvestments or to provide funding thereforpurchases, or shall change the basis of taxation of payments to the an Affected Party of any portion of the Invested Amount, CP Costs its Capital or Earned Discount owned by, owed to or funded in whole or in part by it Yield or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by or funded by it its Capital or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding thereforpurchases; or
(B) shall impose, modify or deem applicable any reserve requirement (including, without limitation, any reserve requirement imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding any reserve requirement, if any, included in the determination of Earned DiscountYield), special deposit or similar requirement against assets of any Affected Partyof, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Partyof, or credit extended by by, any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose any other condition affecting any Asset Interest owned the Receivable Interests or funded in whole or in part by any Affected Party, or its obligations or the Secondary Purchaser's rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar chargespurchases; and the result of any of the foregoing is or would be
(Ai) to increase the cost to, or, in the case of Regulation D referred to or above, to impose a cost on (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoingReceivable Interest, or (2) any Agent for continuing its or the Seller’s relationship with any Investor,
(Bii) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreementwith respect thereto, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, then within thirty ten days after demand by such Affected Party (which demand shall be accompanied by a certificate statement setting forth, in reasonable detail, forth the basis of for such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Partydemand), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost incurred or such reduction suffered.
(b) If an Affected Party shall reasonably determine that the adoption of any applicable law, rule, regulation, directive or guideline regarding capital adequacy, or any change in or phase-in of any applicable law, rule, regulation, directive or guideline 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 an Affected Party 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 the capital of any Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which any such Affected Party could have achieved but for such adoption, change or compliance (taking into consideration the policies of such Affected Party with respect to capital adequacy) by an amount deemed by such Affected Party to be material, then from time to time, within ten days after demand by such Affected Party, the Seller shall pay to such Affected Party such additional amount or amounts as will compensate such Affected Party for such reduction.
(bc) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, Seller of any event of which it has knowledge (including any future event that, in occurring after the judgment of such Affected Party, is reasonably certain to occur) date hereof which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure 2.08. If an Affected Party fails to give or delay in giving such notification shall adversely affect the rights notice within 90 days after it obtains actual knowledge of any such event and such result, such Affected Party shall be entitled to compensation pursuant to this Section 2.08 only to the extent such compensationadditional amount or reduction accrues on or after the date 90 days prior to the date on which such Affected Party gives such notice.
(cd) In determining any amount provided for or referred to in this Section 4.22.08, an the Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicablemethods. Any Affected Party when making a claim under this Section 4.2 2.08 shall submit to the Seller the a certificate (referred to in subsection (a) above) as to such additional or increased cost or reduced return (including calculation thereof in reasonable detail)reduction, which statement shall, in the absence of certificate shall be conclusive absent demonstrable error; provided, be conclusive and binding upon that the Seller-------- failure to deliver any such certificate shall not affect the Affected Party's right to payment hereunder unless notice as required by Section 2.08(c) has not been given.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Georgia Pacific Corp)
Yield Protection. (a) If (i) Regulation D or (ii) any Regulatory ChangeChange including any Specified Regulation:
(Ai) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the any Asset Interest owned by Portfolio owned, maintained or funded by itit (or its participation in any of the foregoing), or any obligations or right to make Purchases or Reinvestments or to provide funding thereforor maintenance therefor (or its participation in any of the foregoing), or shall change the basis of taxation of payments to the Affected Party or other Indemnified Party of any portion of the Invested Amount, CP Costs Total Investment or Earned Discount Yield owned by, owed to to, funded or funded maintained in whole or in part by it (or its participation in any of the foregoing) or any other amounts due under this Agreement in respect of the portion of the Asset Interest owned by Portfolio owned, maintained or funded by it or its obligations or rights, if any, to make or participate in Purchases or Reinvestments or to provide funding therefor; ortherefor or the maintenance thereof;
(Bii) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Federal Reserve Board, but excluding any reserve included in the determination of Earned Discount)reserve, special deposit or similar requirement against assets of any Affected Party, deposits or obligations with or for the account of any Affected Party or with or for the account of any affiliate Affiliate (or entity deemed by the Federal Reserve Board or other Governmental Authority to be an affiliate) of any Affected Party, or credit extended by any Affected Party; or;
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(Diii) shall impose any other condition affecting any Asset Interest owned Portfolio owned, maintained or funded (or participated in) in whole or in part by any Affected Party, or its obligations or rights, if any, to make (or participate in) Purchases or Reinvestments or to provide (or to participate in) funding therefor; ortherefor or the maintenance thereof;
(Eiv) shall change increase the rate for, or changes the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) or similar Person assesses, deposit insurance premiums or similar chargescharges which an Affected Party is obligated to pay; or
(v) shall increase the amount of capital or liquidity maintained or required or requested or directed to be maintained by any Affected Party; and the result of any of the foregoing is or would be, in each case, as determined by the applicable Purchaser Agent or the applicable Affected Party:
(A) to increase the cost to (or to impose a cost on on) (1) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, any Enhancement Agreement or any commitment (hereunder or under any Liquidity Agreement or any Enhancement Agreement) of such Affected Party with respect to any of the foregoing, or (2) any Purchaser Agent or Administrative Agent for continuing its or the Seller’s relationship with any Investor,Purchaser;
(B) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement, any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement, ) with respect thereto; or
(C) in the reasonable determination of such Affected Party, (i) to reduce the rate of return on the capital of an such Affected Party as a consequence of its obligations hereunder hereunder, under any Liquidity Agreement or under any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement), including its funding or maintenance of any portion of the Asset Portfolio, or arising in connection herewith (or therewith) to a level below that which such Affected Party could otherwise have achievedachieved hereunder or thereunder or (ii) to increase the liquidity required of such Affected Party as a consequence of its obligations hereunder or under any Liquidity Agreement or any Enhancement Agreement (or its participation in any such Liquidity Agreement or Enhancement Agreement), including its funding or maintenance of any portion of the Asset Portfolio, or arising in connection herewith (or therewith) to a level greater than that which such Affected Party could otherwise have achieved hereunder or thereunder, then, subject to Section 4.2(d) below, on the Settlement Date (or during the Liquidation Period or after the occurrence of an Event of Termination that has not been waived in accordance with the terms of this Agreement, within thirty days after demand by two (2) Business Days) following its receipt of notice from such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed or by the Affected Party)Administrative Agent or a Purchaser Agent on its behalf) in accordance with Section 4.2(c) below, the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reductionreduction or liquidity increase; provided that such additional amount or amounts shall not be payable with respect to any Regulatory Change for any period in excess of 180 days prior to the date of demand by the Affected Party unless (1) the effect of such Regulatory Change was retroactive by its terms to a period prior to the date of such Regulatory Change, in which case any additional amount or amounts shall be payable for the retroactive period but only if the Affected Party provides its written demand not later than 180 days after such Regulatory Change; or (2) the Affected Party reasonably and in good faith did not believe such Regulatory Change resulted in such an additional or increased cost or charge or such a reduction during such prior period.
(b) Each Affected Party will promptly notify the Seller, (or the Administrative Agent and the or a Purchaser Agent for the Purchaser Group of such Affected Partyon its behalf), if applicable, shall use commercially reasonable efforts to notify Seller and Administrative Agent of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, provided that no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (it, in its reasonable discretion) , shall deem applicable. Any Affected Party (or the Administrative Agent or a Purchaser Agent on its behalf) when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to and Administrative Agent a written statement of such increased cost or reduced return (including calculation thereof in reasonable detail)return, which statement shallstatement, in the absence of demonstrable manifest error, shall be conclusive and binding upon the Seller.
(d) For Except as set forth in clause (a) above, failure or delay on the avoidance part of doubt, (w) any interpretation of FAS 166 or FAS 167 Affected Party (or any successor Accounting Standards Codification SubtopicAdministrative Agent or a Purchaser Agent) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case to demand compensation pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.24.2 shall not constitute a waiver of such Affected Party’s (or the Administrative Agent’s or a Purchaser Agent’s on its behalf) right to demand such compensation.
Appears in 1 contract
Yield Protection. (a) If (i) Regulation D of the Board of Governors of the Federal Reserve System or (ii) any Regulatory ChangeChange occurring after the date hereof:
(A) shall subject an Affected Party to any Taxtax, duty or other charge with respect to the portion of the Asset any Undivided Interest or Interests owned by or funded by it, or any obligations or right to make Purchases or Reinvestments or to provide funding therefor, or shall change the basis of taxation of payments to the Affected Party of any portion amounts in respect of the Invested Amount, CP Costs Purchasers' Investments or Earned Discount owned by, made by or owed to or funded in whole or in part by it or any other amounts due under this Agreement in respect of the portion of the Asset Interest any Undivided Interests owned by or funded by it or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefortherefor (except for franchise taxes imposed with respect to net income or taxes upon or measured by the net income of such Affected Party imposed by the United States of America or any other jurisdiction); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve BoardSystem, but excluding any reserve included in the determination of Earned Discount), special deposit or similar requirement against assets of any Affected Partyof, deposits or obligations with or for the account of any Affected Party (or with or for the account of any affiliate (or entity deemed by the Federal Reserve Board to be an affiliate) of any Affected Partyof), or credit extended by by, any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any such Affected Party; or
(D) shall impose any other condition affecting any Asset Interest Undivided Interests owned or funded in whole or in part by any Affected Party, or its obligations or rights, if any, to make Purchases or Reinvestments or to provide funding therefor; or
(E) shall change the rate for, or the manner in which the Federal Deposit Insurance Corporation (or a successor thereto) assesses, deposit insurance premiums or similar charges; and the result of any of the foregoing is or would be
be (Ax) to increase the cost to or or, to impose a cost on on, (1I) an Affected Party funding or making or maintaining any Purchases or Reinvestments, any purchases, reinvestments, or loans or other extensions of credit under any Liquidity Agreement, or any commitment of such Affected Party with respect to any of the foregoing, or (2II) any the Administrative Agent for continuing its its, or the Seller’s 's, relationship with any Investor,
Purchasers pursuant to the Agreement Documents, (By) to reduce the amount of any sum received or receivable by an Affected Party under this Agreement or under any Liquidity Agreement, or
(C) in the reasonable determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party could otherwise have achieved, then, within thirty days after demand by such Affected Party (which demand shall be accompanied by a certificate setting forth, in reasonable detail, the basis of such demand and the methodology for calculating, and the calculation of, the amounts claimed by the Affected Party), the Seller shall pay directly to such Affected Party such additional amount or amounts as will compensate such Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify the Seller, the Administrative Agent and the Purchaser Agent for the Purchaser Group of such Affected Party, if applicable, of any event of which it has knowledge (including any future event that, in the judgment of such Affected Party, is reasonably certain to occur) which will entitle such Affected Party to compensation pursuant to this Section 4.2; provided, however, no failure to give or delay in giving such notification shall adversely affect the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this Section 4.2, an Affected Party may use any reasonable averaging and attribution methods (consistent with its ordinary business practices) that it (in its reasonable discretion) shall deem applicable. Any Affected Party when making a claim under this Section 4.2 shall submit to the Seller the certificate (referred to in subsection (a) above) as to such increased cost or reduced return (including calculation thereof in reasonable detail), which statement shall, in the absence of demonstrable error, be conclusive and binding upon the Seller.
(d) For the avoidance of doubt, (w) any interpretation of FAS 166 or FAS 167 (or any successor Accounting Standards Codification Subtopic) by the Financial Accounting Standards Board and any pronouncement, interpretation or release by the International Accounting Standards Board, (x) any request, rule, guideline or directive under or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (whether or not having the force of law), regardless of the date enacted, adopted or issued, or (y) any request, rule, guideline or directive promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued, shall, in each such case, constitute an adoption, change, request or directive subject to this Section 4.2.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Terra Industries Inc)
