Additional Costs. 1) The Company shall pay directly to each Funding Party from time to time such amounts as such Funding Party may determine to be necessary to compensate such Funding Party for any costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making or maintaining of any Eurodollar Advances or its obligation to make any Eurodollar Advances under the Operative Documents, or any reduction in any amount receivable by such Funding Party under the Operative Documents in respect of any of such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that: (A) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party under the Operative Documents in respect of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or (B) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (including, without limitation, any of such Advances or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder); or (C) imposes any other condition affecting the Operative Documents (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested. 2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable). 3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate such
Appears in 1 contract
Additional Costs. 1) The (a Subject to Section 13.6, the Company shall pay directly to Administrative Agent, on demand for the account of each Funding Party Bank from time to time such amounts as such Funding Party Bank may determine to be necessary to compensate such Funding Party it for any costs actually incurred by such Funding Party that Bank which such Funding Party Bank determines are attributable to its making or maintaining of any Eurodollar Advances Loan or any Competitive Loan hereunder or its obligation to make any Eurodollar Advances under the Operative Documentssuch Loan hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), in each case resulting from any Regulatory Change that:
which: (Ai0 subjects such Bank (or makes it apparent that such Bank is subject) shall subject to any Funding Party tax (including without limitation any United States interest equalization tax), levy, impost, duty, charge or fee (collectively, "Taxes"), or any deduction or withholding for any Taxes on or from the payment due under any Eurodollar Loan or any Competitive Loan or other amounts due hereunder, other than income and franchise taxes of each jurisdiction (or any subdivision thereof) in which such Bank has an office or its Applicable Lending Office for any of such Advances) to any tax, duty Office; or other charge in respect of such Funded Amounts or (ii0 changes the basis of taxation of any amounts payable to such Funding Party Bank under the Operative Documents this Agreement in respect of any of such Funded Amounts Loans (excluding (A) franchise other than changes which affect taxes measured by or imposed on it or (B) changes in the rate of tax on the overall net income or franchise taxes of such Funding Party Bank or of such its Applicable Lending Office, in Office for any of such Loans by each case, by the jurisdiction (or any subdivision thereof) in which such Funding Party Bank has its principal an office or such Applicable Lending Office); or
or (B) iii0 imposes or modifies or increases or deems applicable any reserve, special deposit or similar requirements (other thanincluding, in without limitation, any such requirement imposed by the case Board of any Funding Party for any period as to which Governors of the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinFederal Reserve System) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Bank or loans made by such Bank, or against any other funds, obligations or other property owned or held by such Bank (including, without limitation, including any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Base Rate"" in Section 1.1 hereof); provided that such Bank actually incurs such additional costs. Each Bank (if so requested by the Company through Administrative Agent) will designate a different available Applicable Lending Office for the Eurodollar Loans or any commitment the Competitive Loans of such Funding Party (includingBank or take such other action as the Company may request if such designation or action will avoid the need for, without limitationor reduce the amount of, such compensation and will not, in the Commitments sole opinion of such Funding Party hereunderBank exercised in good faith, be disadvantageous to such Bank (provided that such Bank shall have no obligation so to designate an Applicable Lending Office for Eurodollar Loans located in the United States of America). Each Bank will furnish the Company with a statement setting forth the basis and amount of each request by such Bank for compensation under this Section 6.1(a); orsubject to Section 6.8, such certificate shall be conclusive, absent manifest error, and may be prepared using any reasonable averaging and attribution methods.
(C) imposes any other condition affecting the Operative Documents (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) b Without limiting the effect of the other foregoing provisions of this SECTION 7.5(B)Section 6.1, in the event that, by reason of any Regulatory Change, any Funding Party Bank either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Bank which includes deposits by reference to which the interest rate on Eurodollar Advances Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that Bank which includes Eurodollar Advances Loans or Competitive Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party Bank so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party Bank to make Eurodollar Loans or continueCompetitive Loans, or to convert Base Rate Advances intoas the case may be, Eurodollar Advances hereunder shall be suspended until the date such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 6.4 hereof shall be applicable).
3) Without limiting (c Good faith determinations and allocations by any Bank for purposes of this Section .1 of the effect of any Regulatory Change on its costs of maintaining its obligations to make Loans or of making or maintaining Loans or on amounts receivable by it in respect of Loans, and of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such additional amounts as such Funding Party may determine to be necessary required to compensate suchsuch Bank in respect of any Additional Costs, shall be conclusive, absent manifest error.
Appears in 1 contract
Additional Costs. 1Subject to Sections 4.04(c) The Company shall pay directly to each Funding Party from time to time such amounts as such Funding Party may determine to be necessary to compensate such Funding Party for any costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making or maintaining of any Eurodollar Advances or its obligation to make any Eurodollar Advances under the Operative Documents, or any reduction in any amount receivable by such Funding Party under the Operative Documents in respect of any of such Advances or such obligation and (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:d):
(Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation Without duplication of any amounts payable to such Funding Party under described in Section 3.03(c), 4.03 or 4.04(a) or 4.04(b)(ii), if after the Operative Documents date hereof any change in respect any law or regulation or in the interpretation thereof by any court or administrative or Governmental Authority charged with the administration thereof or the enactment of any of such Funded Amounts law or regulation shall either (excluding (A1) franchise taxes imposed on it impose, modify or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(B) imposes or modifies deem applicable any reserve, special deposit or similar requirements requirement against any Lender's Commitment or Loans or (2) impose on any Lender (or such Lender's Applicable Lending Office) any other thancondition regarding this Agreement, in its Commitment or the case Loans and the result of any Funding Party event referred to in clause (1) or (2) shall be to increase the cost to such Lender (or such Lender's Applicable Lending Office) of maintaining its Commitment or any Eurodollar Loans made by such Lender (which increase in cost shall be calculated in accordance with such Lender's reasonable averaging and attribution methods), excluding for purposes of this Section 4.04(b) any period such increased costs resulting from (i) Taxes (as to which Section 4.04(a) shall govern) and (ii) changes in the Company is required basis of taxation of Excluded Taxes, by an amount which such Lender deems to pay any amount under PARAGRAPH 5) belowbe material, then, upon demand by such Lender, the reserves and "Eurocurrency liabilities" under Regulation D referred Borrower shall pay to thereinsuch Lender an amount equal to such increase in cost; and
(ii) relating to Without duplication of any extensions amounts payable described in Section 3.03(c), 4.03, 4.04(a) or 4.04(b)(i), if any Lender shall have determined that after the date hereof the adoption of credit any applicable law, rule, regulation or other assets ofguideline regarding capital adequacy, or any deposits with or other liabilities ofchange therein after the date hereof, such Funding Party (including, without limitation, any of such Advances or any deposits referred to change after the date hereof in the definition interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof or compliance by such Lender (or such Lender's Applicable Lending Office) with any request or directive regarding capital adequacy (whether or not having the force of "Eurodollar Rate"law) of any such authority, central bank or comparable agency issued after the date hereof, has or would have the effect of reducing the rate of return on capital for such Lender (or such Lender's Applicable Lending Office) or any commitment corporation controlling such Lender as a consequence of its obligations under this Agreement to a level below that which such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder); or
(C) imposes any other condition affecting the Operative Documents Lender (or any of such extensions of credit or liabilitiesLender's Applicable Lending Office) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(Bsuch corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender's (or such Lender's Applicable Lending Office) or such corporation's policies with respect to capital adequacy), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party then from time to time on request time, upon demand by such Lender, then the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Funding Party may determine to be necessary to compensate suchLender (or such Lender's Applicable Lending Office) or such corporation for such reduction.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Winstar Communications Inc)
Additional Costs. 1(a) The Company shall pay directly to each Funding Party Lender from time to time such amounts as such Funding Party Lender may determine to be necessary to compensate such Funding Party Lender for any costs actually incurred by such Funding Party that such Funding Party Lender determines are attributable to its making or maintaining of any Eurodollar Advances Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsEurodol- lar Loans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change that:
(Ai) shall subject any Funding Party Lender (or its Applicable Lending Office for any of such AdvancesLoans) to any tax, duty or other charge in respect of such Funded Amounts Loans or its Notes or changes the basis of taxation of any amounts payable to such Funding Party Lender under the Operative Documents this Agreement or its Notes in respect of any Credit Agreement of such Funded Amounts Loans (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Lender or of such Applicable Lending Office, in each case, Office by the jurisdiction in which such Funding Party Lender has its principal office or such Applicable Lending OfficeOffice and excluding any U.S. Taxes that would not be payable under the proviso in the first paragraph of Section 5.07(a) hereof); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, than the Reserve Require- ment used in the case determination of any Funding Party the Eurodollar Rate for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinInterest Period for such Loan) relating to any extensions exten- sions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Base Rate") " in Section 1.01 hereof), or any commitment of such Funding Party Lender (including, without limitation, the Commitments of such Funding Party hereunderLender hereun- der); or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Notes (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party Lender requests compensation from the Company under this SECTION 7.5(BSection 5.01(a), the Company may, by notice to such Funding Party Lender (with a copy to the Administrative Agent), suspend the obligation obliga- tion of such Funding Party Lender thereafter to make or continue Continue Eurodollar AdvancesLoans, or to convert Base Rate Advances Convert Loans of any other Type into Eurodollar AdvancesLoans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable), PROVIDED provided that such suspension shall not affect the right of such Funding Party Lender to receive the compensation com- pensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3b) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company shall pay directly to each Funding Party Lender from time to time on request such amounts as such Funding Party Lender may determine to be necessary neces- sary to compensate suchsuch Lender (or, without duplication, the holding company of which such Lender is a subsidiary) for any costs that it determines are attributable to the maintenance by such Lender (or any Applicable Lending Office or such holding company), pursuant to any law or regulation or any interpreta- tion, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of Credit Agreement any court or governmental or monetary authority (i) following any Regulatory Change or (ii) implementing any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) hereafter issued by any government or governmental or supervisory authority implementing at the national level the Basle Accord, of capital in respect of its Commitments or Loans (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Lender (or any Applicable Lending Office or such holding company) to a level below that which such Lender (or any Applicable Lending Office or such holding company) could have achieved but for such law, regulation, interpretation, directive or request).
(c) Each Lender shall notify the Company of any event occurring after the date hereof entitling such Lender to compensation under Section 5.01(a) or 5.01(b) hereof as promptly as practicable, but in any event within 45 days, after such Lender obtains actual knowledge thereof; provided that (i) if any Lender fails to give such notice within 45 days after it obtains actual knowledge of such an event, such Lender shall, with respect to compensation payable pursuant to this Section 5.01 in respect of any costs resulting from such event, only be entitled to payment under this Section 5.01 for costs incurred from and after the date 45 days prior to the date that such Lender does give such notice and (ii) each Lender will desig- nate a different Applicable Lending Office for the Loans of such Lender affected by such event if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the sole opinion of such Lender, be disadvan- tageous to such Lender, except that such Lender shall have no obligation to designate an Applicable Lending Office located in the United States of America. Each Lender will furnish to the Company a certificate setting forth the basis and amount of each request by such Lender for compensation under Section 5.01(a) or 5.01(b) hereof. Determinations and allocations by any Lender for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to Section 5.01(a) hereof, or of the effect of capital maintained pursuant to Section 5.01(b) hereof, on its costs or rate of return of maintaining Loans or its obligation to make Loans, or on amounts receivable by it in respect of Loans, and of the amounts required to compensate such Lender under this Section 5.01, shall be conclusive, pro- vided that such determinations and allocations are made on a reasonable basis. Credit Agreement
Appears in 1 contract
Sources: Credit Agreement (Advo Inc)
Additional Costs. 1▇▇▇▇▇▇▇▇ agrees to pay to Bank all Additional Costs ---------------- within ten (10) The Company shall pay directly to each Funding Party days of receipt by Borrower from Bank of a statement setting forth the amount or amounts due and the basis for the determination from time to time of such amount or amounts, which statement shall be conclusive and binding upon Borrower absent manifest error. Failure on the part of Bank to demand compensation for any Additional Costs in any Interest Period shall not constitute a waiver of Bank's right to demand compensation for any Additional Costs incurred during any such Interest Period or in any other subsequent or prior Interest Period. The term "Additional Costs" shall mean such additional ---------------- amount or amounts as such Funding Party may Bank shall reasonably determine to be necessary to will compensate such Funding Party Bank for any actual costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making Bank in maintaining LIBOR Rates AMENDED AND RESTATED TERM NOTE (AMX Corporation) Page 6 ------------------------------------------------ 3003124v3 on the LIBOR Balances or maintaining any portion thereof as a result of any Eurodollar Advances change, after the date of this Amended Note, in applicable law, rule or its obligation to make any Eurodollar Advances under regulation or in the Operative Documentsinterpretation or administration thereof by, or the compliance by Bank with any reduction in request or directive from, any amount receivable domestic or foreign governmental authority charged with the interpretation or administration thereof (whether or not having the force of law) or by such Funding Party under the Operative Documents in respect of any of such Advances domestic or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:
(A) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes foreign court changing the basis of taxation of payments to Bank of the LIBOR Balances or interest on the LIBOR Balances or any portion thereof at an Adjusted LIBOR Rate or any other fees or amounts payable to such Funding Party under this Amended Note or the Operative Documents in respect of any of such Funded Amounts Loan Agreement (excluding (A) franchise other than taxes imposed on it all or (B) changes in the rate any portion of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, Bank by the jurisdiction in which such Funding Party has its principal office State of Texas or such Applicable Lending Officethe Federal government); or
(B) imposes , or modifies imposing, modifying or applying any reserve, special deposit or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other requirement against assets of, or any deposits with or other liabilities for the account of, such Funding Party (includingcredit extended by, without limitation, any of such Advances or any deposits referred to in other acquisition of funds for loans by Bank, or imposing on Bank, as the definition of "Eurodollar Rate") case may be, or any commitment of such Funding Party (including, without limitation, on the Commitments of such Funding Party hereunder); or
(C) imposes London interbank market any other condition affecting this Amended Note, the Operative Documents (Loan Agreement or the LIBOR Balances so as to increase the cost of Bank making or maintaining Adjustable LIBOR Rates with respect to the LIBOR Balances or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, portion thereof or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of reduce the amount of a category any sum received or receivable by Bank under this Amended Note or the Loan Agreement (whether of deposits principal, interest or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agentotherwise), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases by an amount deemed by Bank in good faith to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (material, but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate suchduplication for Reserve Requirement.
Appears in 1 contract
Sources: Term Note (Amx Corp /Tx/)
Additional Costs. 1(a) The Company shall pay directly In the event that:
(i) any regulatory change ("Regulatory Change" defined as to each Funding Party from time to time the Banks, including all of their agencies, branches and offices, any change after the date hereof in federal, state or foreign laws or regulations or the adoption or making after such amounts as such Funding Party may determine to be necessary to compensate such Funding Party for any costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making or maintaining date of any Eurodollar Advances interpretations, directives or its obligation requests applying to make a class of banks, including the Banks, of or under any Eurodollar Advances under federal, state or foreign laws or regulations (whether or not having the Operative Documentsforce of law) by any court or governmental or monetary authority charged with the interpretation or administration thereof) shall either impose, modify or deem applicable, or result in the application of, any reserve, special deposit, capital maintenance, capital ratio or similar requirement against the Banks' obligations hereunder issued by the Banks, or against any extensions of credit or commitments to extend credit or other assets of or any deposits or other liabilities taken or entered into by the Banks, and the result of any event referred to above shall be to increase the cost to the Banks, or to reduce the amounts receivable by the Banks hereunder, with respect to the Reimbursement Obligations (which increase in cost or reduction in amounts receivable may be determined by the Banks' reasonable allocation of the aggregate of such cost increases or reductions in amounts receivable resulting from such events); or
(ii) any Regulatory Change shall: (A) change the basis of taxation of any amounts payable to the Banks under this Agreement or the Note in respect of any Reimbursement Obligations (other than taxes imposed on the overall net income of the Banks) or the jurisdiction in which the Banks have an office (or any political subdivision thereof or therein); or (B) impose any other conditions affecting this Agreement in respect of Reimbursement Obligations, the loan commitment of the Banks and the result of any event referred to in clause (A) or (B) above shall be to increase the Banks' costs, or to reduce any amount receivable by such Funding Party under the Operative Documents Banks hereunder, in respect of any of such Advances or such obligation the Reimbursement Obligations, (such increases in costs and reductions in amounts receivable being herein called referred to in paragraphs (i) and (ii) are hereinafter referred to as "ADDITIONAL COSTSAdditional Costs")): then, resulting from any upon demand made by the Banks, as promptly as practicable after they obtain knowledge that such a Regulatory Change that:
(A) exists and determines to make such demand, the Borrower shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) pay to any taxthe Banks, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable from time to such Funding Party under the Operative Documents in respect of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, time as specified by the jurisdiction Banks, additional amounts which shall be sufficient to compensate the Banks for such increased cost or reduction in which such Funding Party has its principal office or such Applicable Lending Office); or
(B) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party amounts receivable (including, without limitation, any Additional Costs) from the date of such Advances change, together with interest on each such amount from the date demanded until payment in full thereof at LIBOR for the first two business days following such demand and thereafter at the Default Rate.
(b) If, after the date of this Agreement, the Banks shall have determined that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any deposits referred to change therein, or any change in the definition of "Eurodollar Rate") interpretation or administration thereof by any commitment of such Funding Party (includinggovernmental authority, without limitation, central bank or comparable agency charged with the Commitments of such Funding Party hereunder); or
(C) imposes any other condition affecting the Operative Documents (interpretation or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advancesadministration thereof, or to convert Base Rate Advances into Eurodollar Advancescompliance by the Banks with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable)central bank or comparable agency, PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting has or would have the effect of reducing the other provisions rate of this SECTION 7.5(B)return on the Banks' capital as a consequence of their loan commitment to a level below that which the Banks could have achieved but for such adoption, in change or compliance (taking into consideration the event that, Banks' policies with respect to capital adequacy) by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured an amount deemed by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases Banks to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication)material, the Company shall pay directly to each Funding Party then from time to time on request the Borrower shall pay to the Banks such additional amount or amounts as will compensate the Banks for such Funding Party may determine to be necessary reduction.
(c) Determinations by the Banks for purposes of this section of the effect of any Regulatory Change on its costs or on amounts receivable by it, and of the additional amounts required to compensate suchthe Banks in respect of capital requirements referred to in subsection 2.10(b) hereof, shall be conclusive, absent manifest error.
Appears in 1 contract
Sources: Credit Agreement (Sonicblue Inc)
Additional Costs. 1(a) The Company shall pay directly to each Funding Party from time to time such amounts If, on or after the date hereof, as such Funding Party may determine to be necessary to compensate such Funding Party for any costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making or maintaining a result of the adoption of any Eurodollar Advances or its obligation to make any Eurodollar Advances under the Operative DocumentsRequirement of Law, or any reduction change in any amount receivable Requirement of Law, or any change in the interpretation or administration thereof by such Funding Party under any court or other Governmental Authority charged with the Operative Documents in respect of interpretation or administration thereof, or compliance by any of such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:
(A) shall subject any Funding Party Bank (or its Applicable Lending Office for Office) with any request or directive (whether or not having the force of law) of any such Governmental Authority there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining its Loan (other than taxes, which shall be treated in accordance with Section 5.05 hereof), then such Bank shall, promptly after the occurrence of such Advancesevent, notify the Borrower thereof, and the Borrower shall, subject to clause (c) below, pay to the Administrative Agent for the account of such Bank the amount stated in such notification as required to indemnify such Bank against such increased cost, such amount to be payable within ten days after the Borrower's receipt of such notification.
(b) If any taxBank shall have determined that, duty after the date hereof, the adoption of any Requirement of Law regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or any request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, has or would have the effect of reducing the rate of return on capital of such Bank (or its parent) as a consequence of such Bank's obligations hereunder or its Loan to a level below that which such Bank (or its parent) could have achieved but for such adoption, change, request or directive by an amount reasonably deemed by it to be material, then from time to time, such Bank shall, promptly after the occurrence of such reduction, notify the Borrower thereof, and the Borrower shall, subject to clause (c) below, pay to such Bank the amount stated in such notification as required to indemnify such Bank (or its parent) against such reduction, such amount to be payable within ten days after the Borrower's receipt of such notification.
(c) Each Bank will promptly notify the Borrower of any event of which it has knowledge, occurring after the date hereof, which will entitle such Bank to compensation pursuant to this Section. Before giving any such notice pursuant to this subsection (c) such Bank shall designate a different Applicable Lending Office or take such other action as it deems appropriate in its reasonable judgment if such designation or other charge action (x) will, in respect the reasonable judgment of such Funded Amounts Bank, avoid the need for, or changes reduce the basis amount of, such compensation and (y) will not, in the reasonable judgment of taxation such Bank, be materially disadvantageous to such Bank. A notification of any Bank claiming compensation under this Section 5.01 setting forth in reasonable detail the calculation of the additional amount or amounts to be paid to it hereunder, shall be conclusive and binding on the Borrower in the absence of manifest error. If the Borrower receives any such notification from a Bank, it shall have the right, subject to giving five Business Days' notice to the Administrative Agent, to cancel the Commitment of such Bank and, without penalty or premium but subject to Sections 2.06 and 5.04, to prepay the full outstanding principal amount of such Bank's Loan, together with accrued interest thereon and all other amounts payable to such Funding Party Bank hereunder. Credit Agreement
(d) Without duplication of Section 5.01(a), the Borrower shall pay to each Bank, so long as such Bank shall be required under regulations of the Operative Documents Board of Governors of the Federal Reserve System to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency Liabilities, additional interest on the unpaid principal amount of the Loan of such Bank, from and including the date of such Loan until such principal amount is paid in full, at an interest rate per annum equal at all times to the remainder obtained by subtracting (i) the LIBO Rate for the relevant Interest Period from (ii) the rate obtained by dividing such LIBO Rate by a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage of such Bank for such Interest Period, payable on each date on which interest is payable on such Loan, provided, that if any Bank claims amounts under this clause (d) in respect of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(B) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) belowLoan, the reserves and "Eurocurrency liabilities" under Regulation D referred Borrower shall have the right, subject to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (including, without limitation, any of such Advances or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder); or
(C) imposes any other condition affecting the Operative Documents (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by giving five Business Days' notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make Agent without penalty or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes premium but subject to restrictions on Sections 2.06 and 5.04, to prepay the principal amount of such a category of liabilities or assets that it may holdLoan, then, if together with accrued interest thereon and all other amounts payable to such Funding Party so elects Bank hereunder. Such additional interest shall be determined by notice such Bank and notified to the Company (with a copy to Borrower through the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate such
Appears in 1 contract
Additional Costs. 1(a) The Company shall pay directly Lender will use reasonable efforts (consistent with legal and regulatory restrictions) to each Funding Party from time maintain the availability of the Floating Interest Rate Loan and to time such amounts as such Funding Party may determine avoid or reduce any increased or additional costs payable by Borrower under Section 2.2.3, including, if requested by Borrower, a transfer or assignment of the Loan to be necessary to compensate such Funding Party for any costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making a branch, office or maintaining Affiliate of any Eurodollar Advances or its obligation to make any Eurodollar Advances under the Operative DocumentsLender in another jurisdiction, or any reduction a redesignation of its lending office with respect to the Loan, in order to maintain the availability of the Floating Interest Rate Loan or to avoid or reduce such increased or additional costs, provided that the transfer or assignment or redesignation (a) would not result in any amount receivable additional costs, expenses or risk to Lender that are not reimbursed by such Funding Party under Borrower and (b) would not be disadvantageous in any other respect to Lender (including the Operative Documents effect on any Securitization) as determined by Lender in respect of any of such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:its reasonable discretion.
(Ab) shall subject If Lender requests compensation under Section 2.2.3, or if Borrower is required to pay any Funding Party (Indemnified Taxes or its Applicable Lending Office additional amounts to Lender or any Governmental Authority for any the account of such Advances) Lender pursuant to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party under the Operative Documents in respect of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending OfficeSection 2.7 and, in each case, Lender has declined or is unable to designate a different lending office in accordance with Section 2.2.4(a), then Borrower may, at its sole expense and effort, upon notice to Lender, require Lender to assign and delegate, without recourse, all of its interests, rights (other than its existing rights to payments pursuant to Section 2.2.3 or Section 2.7) and obligations under this Agreement and the related Loan Documents to another Lender designated by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office)Borrower; orprovided that:
(Bi) imposes The assigning Lender shall have received payment of an amount equal to the outstanding principal of its ratable portion of the Loan, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents from the assignee (to the extent of such outstanding principal and accrued interest and fees) or modifies any reserve, special deposit or similar requirements Borrower (in the case of all other than, amounts);
(ii) in the case of any Funding Party such assignment resulting from a claim for any period as to which the Company is compensation under Section 2.2.3 or payments required to pay any amount under PARAGRAPH 5be made pursuant to Section 2.7, such assignment will result in a reduction in such compensation or payments thereafter;
(iii) belowsuch assignment does not conflict with applicable law; and
(iv) if, upon such demand by Borrower, Lender elects to waive its request for additional compensation pursuant to Sections 2.2.3 or Section 2.7, the reserves demand by Borrower for Lender to so assign all of its rights and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (including, without limitation, any of such Advances or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder); or
(C) imposes any other condition affecting the Operative Documents (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company obligations under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to Agreement shall thereupon be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requesteddeemed withdrawn.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate such
Appears in 1 contract
Additional Costs. 1(a) The Company shall pay directly to each Funding Party Bank from time to time such amounts as such Funding Party Bank may determine to be necessary to compensate such Funding Party it for any costs actually incurred by which such Funding Party that such Funding Party Bank determines are attributable to its making or maintaining of any Eurodollar Advances Loans or its obligation to make any Eurodollar Advances under the Operative Documentseurodollar loans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change thatwhich:
(Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Bank under the Operative Documents this Agreement or its Note in respect of any of such Funded Amounts Loans (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Bank or of such its Applicable Lending Office, in each case, Office imposed by the jurisdiction in which such Funding Party Bank has its principal office or such Applicable Lending Office); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, than the Reserve Requirement utilized in the case determination of any Funding Party the LIBOR Rate for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinsuch Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (including, without limitation, any of such Advances or any deposits referred to in the definition of "Eurodollar Rate") Bank or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder)Bank; or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement, its Note (or any of such extensions of credit or liabilities) or its Commitments. If Commitment.
(b) Without limiting the effect of the provisions of SECTION 5.1(a) hereof, the obligation of any Funding Party requests compensation from Bank to make or Continue, or to Convert Alternate Base Rate Loans or Fed Funds Loans into Eurodollar Loans hereunder shall be suspended upon notice to the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, ) until the any Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) 5.4 hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any such Regulatory Change, any Funding Party such Bank either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Bank which includes deposits by reference to which the interest rate on Eurodollar Advances Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) 5.1 (but without duplication), if any Bank determines that compliance with any change in any law or regulation or any guideline or request from any central bank or other governmental authority (whether or not having the force of law) affects or would affect the amount of capital required or expected to be maintained by such Bank or any Person controlling such Bank and that the amount of such capital is increased by or based upon the existence of such Bank's Commitment to lend hereunder and other commitments of this type or any Loan, then, upon demand by such Bank (with a copy of such demand to the Agent), the Company shall immediately pay to the Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank or such Person in the light of such circumstances, to the extent that such Bank determines such increase in capital to be allocable to the existence of such Bank's Commitment to lend or Loans hereunder.
(d) Each Bank will notify the Company of any event occurring after the date of this Agreement that will entitle such Bank to compensation under SUBSECTIONS (a) or (c) of this SECTION 5.1 as promptly as practicable. Each Bank will furnish to the Company a certificate setting forth the basis and amount of each request by such Bank for compensation under SUBSECTION (a) or (c) of this SECTION 5.1, which certificate shall be conclusive and binding on the Company in the absence of manifest error. Determinations and allocations by any Bank for purposes of this SECTION 5.1 of the effect of any Regulatory Change, law, regulation, guideline or request of any central bank or other monetary authority shall be conclusive and binding on the Company absent manifest error.
(e) Notwithstanding the foregoing, the Company will not be required to reimburse any Bank for any Additional Costs or increase in capital under this SECTION 5.1 arising prior to 90 days preceding the date of notice, unless the applicable Regulatory Change, law, regulation, guideline or request of any central bank or other monetary authority (collectively, a "CHANGE") is imposed retroactively. In the case of a Change which is retroactive in effect, such notice shall be provided to the Company not later than 90 days from the date that such Bank reasonably should have learned of such Change and the Company's obligation to compensate such Bank for such Additional Costs or increase in capital is contingent upon the provision of such timely notice (but any failure by such Bank to provide such timely notice shall not affect the Company's reimbursement obligations with respect to (i) Additional Costs or increase in capital incurred from the date as of which the Change became effective to the date that is 90 days after such Bank reasonably should have learned of such Change and (ii) Additional Costs or increases in capital following the provision of such notice. No failure on the part of any Bank to demand compensation under this SECTION 5.1 shall constitute a waiver of its right to demand such compensation on any other occasion in connection with any other Change. If the affected Bank shall subsequently recoup costs for which such Bank has theretofore been compensated by the Company, such Bank shall remit to the Company the amount of the recoupment.
(f) If the Company shall be required to make any payment or reimbursement or to compensate any Bank under this SECTION 5.1, so long as no Default has occurred and is continuing, the Company shall be free at any time within 180 days after the receipt of the certificate of the affected Bank, (i) to terminate the affected Bank's Commitment and the affected Bank's entitlement to the facility fee accruing after such termination and to prepay the Loans of such Bank in full together with accrued and unpaid interest on the amount thereof and all other amounts payable hereunder, (ii) to prepay the affected portion of any Loan in full, together with accrued and unpaid interest on the amount thereof and pay all other amounts payable hereunder through the date of such prepayment or (iii) to replace any such Bank with another bank reasonably acceptable to the Agent. Upon any exercise of the rights described in CLAUSE (i), (ii) or (iii) above, the Company shall pay directly such affected Bank all amounts payable pursuant to each Funding Party from time SECTION 5.5 with respect to time on request such amounts as such Funding Party may determine to be necessary the cost of funds and SUBSECTION (a) or (c) of this SECTION 5.1 in order to compensate suchsuch affected Bank for Additional Costs or increases in capital with respect to the period prior to termination, prepayment or replacement, as the case may be.
Appears in 1 contract
Additional Costs. 1(a) The Company F.Y.I. shall pay directly to each Funding Party Lender from time to time time, promptly upon the request of such amounts as such Funding Party may determine to be necessary to compensate such Funding Party for any Lender, the costs actually incurred by such Funding Party that Lender which such Funding Party Lender determines are directly attributable to its making or maintaining of any Eurodollar Advances Loans to F.Y.I. or its obligation to make or create any Eurodollar Advances under the Operative Documentsof such Loans hereunder to F.Y.I., or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder from F.Y.I. in respect of any of such Advances Loans or such obligation obligations (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change thatwhich:
(Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Lender under the Operative Documents this Agreement or its Notes in respect of any of such Funded Amounts Loans (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Lender or its Applicable Lending Office for any of such Applicable Lending Office, in each case, Loans by the jurisdiction in which such Funding Party Lender has its principal office or such Applicable Lending Office); or;
(Bii) imposes or modifies any reserve, special deposit deposit, minimum capital, capital ratio or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) requirement relating to any extensions of credit or other assets of, or any deposits with or other liabilities or commitments of, such Funding Party Lender (including, without limitation, including any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Rate") or any commitment " in Section 1.1 hereof, but excluding the Reserve Requirement to the extent it is included in the calculation of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunderAdjusted Eurodollar Rate); or
(Ciii) imposes any other condition affecting this Agreement or the Operative Documents (Notes or any of such extensions of credit or liabilitiesliabilities or commitments. Each Lender will notify F.Y.I. (with a copy to the Administrative Agent) of any event occurring after the Closing Date which will entitle such Lender to compensation pursuant to this Section 4.1(a) as promptly as practicable after it obtains knowledge thereof and determines to request such compensation, and (if so requested by F.Y.I.) will designate a different Applicable Lending Office for the Eurodollar Loans of such Lender if such designation will avoid the need for, or its Commitmentsreduce the amount of, such compensation and will not, in the sole opinion of such Lender, violate any law, rule or regulation or be in any way disadvantageous to such Lender, provided that such Lender shall have no obligation to so designate an Applicable Lending Office located in the U.S. Each Lender will furnish F.Y.I. with a certificate setting forth the basis, amount and computation of each request of such Lender for compensation under this Section 4.1(a). If any Funding Party Lender requests compensation from the Company F.Y.I. under this SECTION 7.5(BSection 4.1(a), the Company F.Y.I. may, by notice to such Funding Party Lender (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter Lender to make or continue Eurodollar AdvancesContinue making, or to convert Base Convert Prime Rate Advances into Loans into, Eurodollar Advances, Loans until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 4.4 hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2(b) Without limiting the effect of the other foregoing provisions of this SECTION 7.5(B)Section 4.1, in the event that, by reason of any Regulatory Change, any Funding Party Lender either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Lender which includes deposits by reference to which the interest rate on Eurodollar Advances Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that Lender which includes Eurodollar Advances Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party Lender so elects by notice to the Company F.Y.I. (with a copy to the Administrative Agent), the obligation of such Funding Party Lender to make or continueContinue making, or to convert Base Convert Prime Rate Advances Loans into, Eurodollar Advances Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 4.4 hereof shall be applicable).
3(c) Without limiting Determinations and allocations by any Lender for purposes of this Section 4.1 of the effect of any Regulatory Change on its costs of maintaining its obligation to make Loans or of making or maintaining Loans or on amounts receivable by it in respect of Loans and of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such additional amounts as such Funding Party may determine to be necessary required to compensate suchsuch Lender in respect of any Additional Costs, shall be conclusive in the absence of manifest error, provided that such determinations and allocations are made on a reasonable basis.
Appears in 1 contract
Sources: Credit Agreement (Fyi Inc)
Additional Costs. 1(a) The Company shall pay directly to each Funding Party Bank from time to time such amounts as such Funding Party Bank may determine to be necessary to compensate such Funding Party Bank for any costs actually incurred by such Funding Party that such Funding Party Bank determines are attributable to its making or maintaining of any Eurodollar Advances Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsLoans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional ---------- Costs"), resulting from any Regulatory Change that:
(Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Bank under the Operative Documents this Agreement or its Note in respect of any of such Funded Amounts Loans (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on measured by the overall net income of such Funding Party Bank or of such its Applicable Lending Office, in each case, Office for any of such Loans by the jurisdiction in which such Funding Party Bank has its principal office or such Applicable Lending Office); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, than the Reserve Requirement used in the case determination of any Funding Party the Eurodollar Rate for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinInterest Period for such Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Bank (including, without limitation, any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Base Rate") " in Section 1.01 hereof), or any commitment of such Funding Party Bank (including, without limitation, the Commitments Commitment of such Funding Party Bank hereunder); or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Note (or any of such extensions of credit or liabilities) or its CommitmentsCommitment. If any Funding Party Bank requests compensation from the Company under this SECTION 7.5(BSection 5.01(a), the Company may, by notice to such Funding Party Bank (with a copy to the Administrative Agent), suspend the obligation of such Funding Party Bank thereafter to make or continue Continue Eurodollar AdvancesLoans, or to convert Base Rate Advances Convert Loans of any other Type into Eurodollar AdvancesLoans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable), PROVIDED provided that such suspension shall not affect the right of such Funding Party Bank to receive -------- the compensation so requested.
2(b) Without limiting the effect of the other provisions of this SECTION 7.5(B)Section 5.01(a) hereof, in the event that, by reason of any Regulatory Change, any Funding Party Bank either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party Bank that includes deposits by reference to which the interest rate on Eurodollar Advances Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party Bank that includes Eurodollar Advances Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party Bank so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party Bank to make or continueContinue, or to convert Base Rate Advances Convert Loans of any other Type into, Eurodollar Advances Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable).
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company shall pay directly to each Funding Party Bank from time to time on request such amounts as such Funding Party Bank may determine to be necessary to compensate suchsuch Bank (or, without duplication, the bank holding company of which such Bank is a subsidiary) for any costs that it determines are attributable to the maintenance by such Bank (or any Applicable Lending Office or such bank holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of any court or governmental or monetary authority (i) following any Regulatory Change or (ii) implementing any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) heretofore or hereafter issued by any government or governmental or supervisory authority implementing at the national or supra- national level the Basel Accord (including, without limitation, the Final Risk- Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 C.F.R. Part 208, Appendix A; ▇▇ ▇.▇.▇. ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇) and the Final Risk-Based Capital Guidelines of the Office of the Comptroller of the Currency (12 C.F.R. Part 3, Appendix A)), of capital in respect of its Commitment or Loans (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Bank (or any Applicable Lending Office or such bank holding company) to a level below that which such Bank (or any Applicable Lending Office or such bank holding company) could have achieved but for such law, regulation, interpretation, directive or request).
(d) Each Bank shall notify the Company of any event occurring after the date hereof entitling such Bank to compensation under Section 5.01(a) or (c) hereof as promptly as practicable, but in any event within 45 days, after such Bank obtains actual knowledge thereof; provided that (i) if any Bank fails to -------- give such notice within 45 days after it obtains actual knowledge of such an event, such Bank shall, with respect to compensation payable pursuant to this Section 5.01 in respect of any costs resulting from such event, only be entitled to payment under this Section 5.01 for costs incurred from and after the date 45 days prior to the date that such Bank does give such notice and (ii) each Bank will designate a different Applicable Lending Office for the Loans of such Bank affected by such event if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the sole opinion of such Bank, be disadvantageous to such Bank, except that such Bank shall have no obligation to designate an Applicable Lending Office located in the United States of America. Each Bank will furnish to the Company a certificate setting forth the basis and amount of each request by such Bank for compensation under Section 5.01(a) or (c) hereof. Determinations and allocations by any Bank for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to Section 5.01(a) hereof, or of the effect of capital maintained pursuant to Section 5.01 hereof, on its costs or rate of return of maintaining Loans or its obligation to make Loans, or on amounts receivable by it in respect of Loans, and of the amounts required to compensate such Bank under this Section 5.01, shall be conclusive, provided that such determinations and allocations are made on a -------- reasonable basis.
Appears in 1 contract
Additional Costs. 1(a) The Company Borrower shall pay directly to each Funding Party Lender from time to time such amounts as such Funding Party may determine to be are necessary to compensate such Funding Party Lender for any increase in costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making or maintaining of any Eurodollar Advances Loans to the Borrower or its obligation to make any Eurodollar Advances under Loans hereunder to the Operative DocumentsBorrower, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), in each case, from those costs and amounts receivable existing on the date hereof, resulting from any Regulatory Change that:
(A) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party under the Operative Documents in respect of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(Bi) imposes or modifies any reserve, special deposit or similar requirements (other thanrequirements, in including any application of the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) requirement, relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, including any of such Advances Loans or any deposits referred to in the definition of "Eurodollar LIBOR Rate") " in Section 1.01), or any commitment of such Funding Party Lender (including, without limitation, including the Commitments Commitment of such Funding Party Lender hereunder); or
(Cii) imposes or any Lender or the London interbank market any other condition affecting the Operative Documents (this Agreement or any of Loans made by such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requestedLender.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3b) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company Borrower shall pay directly to each Funding Party Lender from time to time on request such amounts as such Funding Party Lender may determine in good faith to be necessary to compensate suchsuch Lender (or, without duplication, the bank holding company of which such Lender is a subsidiary) for any increase in costs that it in good faith determines is attributable to the maintenance by such Lender (or any Applicable Lending Office or such bank holding company), pursuant to any law or regulation or any interpretation, directive, guideline or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of or by any court or governmental, monetary, fiscal or other authority (i) following any Regulatory Change or (ii) implementing any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) issued after the date of this Agreement by any government or governmental or supervisory authority implementing at the national level the Basle Accord, of capital in respect of its Commitment or Loans (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Lender (or any Applicable Lending Office or such bank holding company) to a level below that which such Lender (or any Applicable Lending Office or such bank holding company) could have achieved but for such law, regulation, interpretation, directive, guideline or request). For purposes of this Section 5.01(b), "Basle Accord" shall mean the proposals for risk-based capital framework described by the Basle Committee on Banking Commercial Banks Loan Agreement Regulations and Supervisory Practices in its paper entitled "International Convergence of Capital Measurement and Capital Standards" dated July 1988, as amended, modified and supplemented and in effect from time to time or any replacement thereof.
Appears in 1 contract
Additional Costs. 1(a) The Company Borrower shall pay directly within five (5) Business Days of the request therefor to each Funding Party Agent for the account of such Bank from time to time such amounts as such Funding Party Bank may determine to be necessary to compensate such Funding Party it for any costs actually incurred by such Funding Party that Bank which such Funding Party Bank determines are attributable to its making or maintaining of any Eurodollar Advances hereunder or its obligation to make any Eurodollar of such Advances under the Operative Documentshereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change thatwhich:
(Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Bank under the Operative Documents this Agreement or its Note in respect of any of such Funded Amounts Advances (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Bank or its Applicable Lending Office for any of such Applicable Lending Office, in each case, Advances by the jurisdiction in which such Funding Party Bank has its principal office or such Applicable Lending Office); or;
(Bii) imposes or modifies any reserve, special deposit deposit, minimum capital, capital ratio, or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) requirement relating to any extensions of credit or other assets of, or any deposits with or other liabilities or commitments of, such Funding Party Bank (including, without limitation, including any of such Advances or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder" in Section 1.1 hereof); or
(Ciii) imposes any other condition affecting this Agreement or the Operative Documents (Notes or any of such extensions of credit or liabilitiesliabilities or commitments. Each Bank will notify the Borrower of any event occurring after the date of this Agreement which will entitle such Bank to compensation pursuant to this Section 4.1(a) as promptly as practicable after it obtains knowledge thereof and determines to request such compensation, and will designate a different Applicable Lending Office for the Advances affected by such event if such designation will avoid the need for, or its Commitmentsreduce the amount of, such compensation and will not, in the sole opinion of such Bank, violate any law, rule, or regulation or be in any way disadvantageous to such Bank, provided that such Bank shall have no obligation to so designate an Applicable Lending Office located in the United States of America. Each Bank will furnish the Borrower with a certificate setting forth the basis and the amount of each request of such Bank for compensation under this Section 4.1(a). If any Funding Party Bank requests compensation from the Company Borrower under this SECTION 7.5(BSection 4.1(a), the Company Borrower may, by notice to such Funding Party Bank (with a copy to the Administrative Agent), ) suspend the obligation of such Funding Party thereafter Bank to make or continue Eurodollar AdvancesContinue making, or Convert Advances into, Advances of the Type with respect to convert Base Rate Advances into Eurodollar Advances, which such compensation is requested until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 4.4 hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2(b) Without limiting the effect of the other foregoing provisions of this SECTION 7.5(B)Section 4.1, in the event that, by reason of any Regulatory Change, any Funding Party Bank either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Bank which includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that Bank which includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party Bank so elects by notice to the Company Borrower (with a copy to the Administrative Agent), the obligation of such Funding Party Bank to make or continueContinue making, or to convert Base Rate Convert Advances into, Eurodollar Advances of such Type hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 4.4 hereof shall be applicable).
3(c) Without limiting Determinations and allocations by any Bank for purposes of this Section 4.1 of the effect of any Regulatory Change on its costs of maintaining its obligations to make Advances or of making or maintaining Advances or on amounts receivable by it in respect of Advances, and of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such additional amounts as such Funding Party may determine to be necessary required to compensate suchsuch Bank in respect of any Additional Costs, shall be conclusive, provided that such determinations and allocations are made on a reasonable basis.
Appears in 1 contract
Additional Costs. 1(a) The Company shall pay directly to each Funding Party Lender from time to time such amounts as such Funding Party Lender may determine to be necessary to compensate such Funding Party it for any costs actually incurred by which such Funding Party that such Funding Party Lender determines are attributable to its making or maintaining of any Eurodollar Advances Fixed Rate Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsFixed Rate Loans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change thatwhich:
(Ai) shall subject subjects any Funding Party Lender to taxation on, or changes the basis of taxation of, any amounts payable to such Lender under this Agreement or its Notes in respect of any of such Loans (other than taxes imposed on or measured by the overall net income of such Lender or of its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party under the Operative Documents in respect of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, Loans by the jurisdiction in which such Funding Party Lender has its principal office or such Applicable Lending Office); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, than the Reserve Requirement utilized in the determination of the Fixed Rate or LIBO Rate, as the case of any Funding Party may be, for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinsuch Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, including any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Fixed Base Rate") " in Section 1.01 hereof), or any commitment of such Funding Party Lender (including, without limitation, including the Commitments of such Funding Party Lender hereunder); or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Notes (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party Lender requests compensation from the Company under this SECTION 7.5(BSection 5.01(a), the Company may, by notice to such Funding Party Lender (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter Lender to make or continue Eurodollar Advances, or Continue Loans of the Type with respect to convert Base Rate Advances into Eurodollar Advances, which such compensation is requested-until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2(b) Without limiting the effect of the other provisions of paragraph (a) of this SECTION 7.5(B)Section 5.01, in the event that, by reason of any Regulatory Change, any Funding Party Lender either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Lender which includes deposits by reference to which the interest rate on Eurodollar Advances Loans or CD Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that Lender which includes Eurodollar Advances Loans or CD Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party Lender so elects by notice to the Company (with a copy ..to the Administrative Agent), the obligation of such Funding Party Lender to make or continue, or to convert Base Rate Advances into, Eurodollar Advances Continue Loans of such Type hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable).
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company shall pay directly to each Funding Party Lender from time to time on request such amounts as such Funding Party Lender may determine to be necessary to compensate suchsuch Lender (or, without duplication, the bank holding company of which such Lender is a subsidiary) for any costs which it determines are attributable to the maintenance by such Lender (or any Applicable Lending Office or such bank holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law) of any court or governmental or monetary authority
(i) following any Regulatory Change, or
(ii) implementing any risk-based capital guideline or requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) heretofore or hereafter issued by any government or governmental or supervisory authority implementing at the national level the Basle Accord (including, without limitation, the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 CFR Part 208 ' Appendix A; 12 CFR Part 225, Appendix A) and the Final Risk-Based ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇he Office of the Comptroller of the Currency (12 CFR Part 3, Appendix A)),
Appears in 1 contract
Additional Costs. 1(a) The Company shall pay directly to each Funding Party from time to time such amounts as such Funding Party may determine to be necessary to compensate such Funding Party for any costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making or maintaining of any Eurodollar Advances or its obligation to make any Eurodollar Advances under If the Operative Documentsadoption of, or any reduction change in, in each case after the date hereof, any amount receivable Requirement of Law or in the interpretation or application thereof or compliance by such Funding Party under any Lender with any request or directive (whether or not having the Operative Documents in respect force of any of such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting law) from any Regulatory Change thatcentral bank or other Governmental Authority or the NAIC made subsequent to the date hereof:
(Ai) shall subject any Funding Party (Lender or its Applicable Lending Office for any of such Advances) L/C Lender to any taxtax of any kind whatsoever with respect to this Agreement, duty any Note, any Letter of Credit or other charge in respect of such Funded Amounts any Lender's participation therein, any L/C Document or changes any Loan made by it or change the basis of taxation of any amounts payable payments to such Funding Party under the Operative Documents Lender in respect of thereof by any of such Funded Amounts Governmental Authority (excluding (A) franchise except for taxes imposed on it covered by or (B) expressly excluded from coverage by Section 5.06, changes in the rate of tax on the overall net income or net profits of such Funding Party Lender or of such its Applicable Lending Office, or any affiliate thereof or franchise taxes or similar taxes imposed with respect to or in lieu of its net income or net profits by any Governmental Authority);
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender or L/C Lender which is not otherwise included in the determination of the LIBO Rate hereunder; or
(iii) shall impose on such Lender or L/C Lender any other condition (excluding taxes); and the result of any of the foregoing is to increase the cost to such Lender or L/C Lender, by an amount which such Lender or L/C Lender deems to be material (and it is the policy of such Lender or L/C Lender to seek reimbursement from a borrower for such amount), of making, converting into, continuing or maintaining LIBOR Loans or issuing or participating in Letters of Credit or to reduce any amount receivable hereunder in respect thereof then, in any such case, Borrower shall, within 10 days of written demand therefor, pay such Lender or L/C Lender any additional amounts necessary to compensate such Lender or L/C Lender on a net after-tax basis (taking into account any additional tax costs or tax benefits) for such increased cost or reduced amount receivable. If any Lender or L/C Lender becomes entitled to claim any additional amounts pursuant to this subsection, it shall promptly notify Borrower, through Administrative Agent, of the event by reason of which it has become so entitled.
(b) In the event that any Lender or L/C Lender shall have determined that the adoption after the date hereof of any law, rule, regulation or guideline regarding capital adequacy (or any change after the date hereof therein or in the interpretation or application thereof) or compliance by any Lender or L/C Lender or any corporation controlling such Lender or L/C Lender with any request or directive regarding capital adequacy (whether or not having the force of law) from any central bank or other Governmental Authority or the NAIC, in each case, by made subsequent to the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(B) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (including, without limitation, any of such Advances or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party (date hereof including, without limitation, the Commitments issuance after the date hereof of any final rule, regulation or guideline, does or shall have the effect of reducing the rate of return on such Funding Party hereunder); or
Lender's or L/C Lender's or such corporation's capital as a consequence of its obligations hereunder or under any Letter of Credit to a level below that which such Lender or L/C Lender or such corporation could have achieved but for such adoption, change or compliance (Ctaking into consideration such Lender's or L/C Lender's or such corporation's policies with respect to capital adequacy) imposes any other condition affecting the Operative Documents (by an amount deemed by such Lender or any of L/C Lender to be material, then from time to time, after submission by such extensions of credit Lender or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice L/C Lender to such Funding Party Borrower (with a copy to the Administrative Agent)) of a written request therefor, suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise Borrower shall promptly pay to such request ceases Lender or L/C Lender such additional amount or amounts as will compensate such Lender or L/C Lender for such reduction.
(c) A certificate as to be any additional amounts setting forth in effect (in which case reasonable detail the provisions calculation of SECTION 7.5(E) hereof additional amounts payable pursuant to this Section 5.01 submitted by such Lender or L/C Lender, through Administrative Agent, to Borrower shall be applicable), PROVIDED that such suspension shall not affect conclusive in the right absence of such Funding Party to receive the compensation so requested.
2) clearly demonstrable error. Without limiting the effect survival of any other covenant hereunder, this Section 5.01 shall survive the termination of this Agreement and the payment of the Notes and all other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable)Obligations payable hereunder.
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate such
Appears in 1 contract
Additional Costs. 1(a) The Company Each Borrower shall pay directly to each Funding Party Lender from time to time such amounts as such Funding Party Lender may determine to be necessary to compensate such Funding Party Lender for any costs actually incurred by such Funding Party that such Funding Party Lender determines are attributable to its making or maintaining of any Eurodollar Advances LIBO Rate Loans or Set Rate Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsLIBO Rate Loans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change that:
(Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Lender under the Operative Documents this Agreement or its Notes in respect of any Credit Agreement ---------------- of such Funded Amounts Loans (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on measured by the overall net income of such Funding Party Lender or of such its Applicable Lending Office, in each case, Office for any of such Loans by the jurisdiction in which such Funding Party Lender has its principal office or such Applicable Lending Office); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, than the Reserve Requirement utilized in the case determination of any Funding Party the Adjusted LIBO Rate for any period as to which such Loan and Mandatory Costs utilized in the Company is required to pay any amount under PARAGRAPH 5) below, determination of the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinLIBO Rate for such Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, any of such Advances Loans or any deposits referred to in the definition of "Eurodollar LIBO Rate") " in Section 1.01), or any commitment of such Funding Party Lender (including, without limitation, the Commitments Commitment of such Funding Party Lender hereunder); or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Notes (or any of such extensions of credit or liabilities) or its CommitmentsCommitment. If any Funding Party Lender requests compensation from the Company any Borrower under this SECTION 7.5(BSection 5.01(a), the Company may, by notice to such Funding Party Lender (with a copy to the Administrative Agent), suspend the obligation of such Funding Party Lender thereafter to make or continue Eurodollar Advances, or to convert Base LIBO Rate Advances into Eurodollar Advances, Loans until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof Section 5.04 shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party Lender to receive the compensation so requested.
2(b) Without limiting the effect of the other provisions of paragraph (a) of this SECTION 7.5(B)Section 5.01, in the event that, by reason of any Regulatory Change, any Funding Party Lender either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party Lender that includes deposits by reference to which the interest rate on Eurodollar Advances LIBO Rate Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party Lender that includes Eurodollar Advances LIBO Rate Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party Lender so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party Lender to make or continue, or to convert Base LIBO Rate Advances into, Eurodollar Advances Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof Section 5.04 shall be applicable).
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company shall pay directly to each Funding Party Lender from time to time on request such amounts as Credit Agreement ---------------- such Funding Party Lender may determine to be necessary to compensate suchsuch Lender (or, without duplication, the bank holding company of which such Lender is a subsidiary) for any costs that it determines are attributable to the maintenance by such Lender (or any Applicable Lending Office or such bank holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of any court or governmental or monetary authority (i) following any Regulatory Change or (ii) implementing any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) issued after the date hereof by any government or governmental or supervisory authority implementing at the national level the Basel Accord (including, without limitation, the Final Risk-Based Capital Guidelines), of capital in respect of its Commitment or Loans (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Lender (or any Applicable Lending Office or such bank holding company) to a level below that which such Lender (or any Applicable Lending Office or such bank holding company) would have achieved with respect to its Commitment or Loans but for such law, regulation, interpretation, directive or request).
(d) Each Lender shall notify the Company of any event occurring after the date hereof entitling such Lender to compensation under paragraph (a) or (c) of this Section 5.01 as promptly as practicable, but in any event within 45 days, after such Lender obtains actual knowledge thereof. If any Lender fails to give such notice within 45 days after it obtains actual knowledge of such an event, such Lender shall, with respect to compensation payable pursuant to this Section 5.01 in respect of any costs resulting from such event, only be entitled to payment under this Section 5.01 for costs incurred from and after the date 45 days prior to the date that such Lender does give such notice. Each Lender will furnish to the Company a certificate setting forth the basis and amount of each request by such Lender for compensation under paragraph (a) or (c) of this Section 5.01. Determinations and allocations by any Lender for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to paragraph (a) or (b) of this Section 5.01, or of the effect of capital maintained pursuant to paragraph (c) of this Section 5.01, on its costs or rate of return of maintaining Loans or its obligation to make Loans, or on amounts receivable by it in respect of Loans, and of the amounts required to compensate such Lender under this Section 5.01, shall be conclusive absent manifest error, PROVIDED that such determinations and allocations are made on a reasonable basis.
(e) Each Lender will designate a different Applicable Lending Office for the Loans of such Lender affected by any event Credit Agreement ---------------- specified in paragraphs (a), (b) or (c) of this Section 5.01 or in Section 5.03 if such designation will avoid the need for, or reduce the amount of, such compensation or suspension, as the case may be, and will not, in the sole opinion of such Lender, be disadvantageous to such Lender.
Appears in 1 contract
Additional Costs. 1(a) The Company If the bank shall pay directly to each Funding Party from time to time such amounts as such Funding Party may determine an additional amount to be necessary to compensate such Funding Party it for any costs actually incurred by such Funding Party that such Funding Party which the Bank determines are attributable to its making or maintaining of any Eurodollar Advances Fixed Rate Loans under this Agreement or the Note or its obligation to make any Eurodollar Advances under the Operative Documentssuch Loans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change that:
which: (Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party the Bank under this Agreement or the Operative Documents Note in respect of any of such Funded Amounts Loans (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party the Bank or of its Lending Office for any of such Applicable Lending Office, in each case, Loans by the jurisdiction in which such Funding Party has its principal office the Principal Office or such Applicable Lending OfficeOffice is located); or
or (Bii) imposes or modifies any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party the Bank (including, without limitation, including any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Fixed Base Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder" in Section 1.01); or
or (Ciii) imposes any other condition affecting this Agreement or the Operative Documents Note (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company mayBank will notify the Borrower of the occurrence of such event occurring after the date of this Agreement which will entitle the Bank to compensation pursuant to this Section 3.01(a) as promptly as practicable after it obtains knowledge thereof and determines to request such compensation. The additional amounts payable hereunder by the Borrower will be such amounts as, in the Bank's reasonable determination, will compensate the Bank for such Additional Costs and, subject to the further terms of this paragraph, such amount shall be due and payable by the Borrower to the Bank at the time of such notice. If at the time of notice to such Funding Party (with a copy the Borrower that amounts are due under this Section 3.01(a), the Borrower and the Bank disagree as to the Administrative Agent)amounts payable, suspend then the obligation Borrower and the Bank shall thereafter attempt to negotiate in good faith an adjustment to the compensation payable hereunder which will adequately compensate the Bank for such Additional Costs. If the Borrower and the Bank are unable to agree to such adjustment within thirty days of the day on which the Borrower receives such notice, then commencing as of the date of such Funding Party thereafter to make or continue Eurodollar Advancesnotice, or to convert Base Rate Advances into Eurodollar Advancesthe fees payable hereunder shall increase by an amount which will, until in the Regulatory Change giving rise to Bank's reasonable determination, compensate the Bank for such request ceases Additional Costs, the Bank's determination of such amount to be in effect (in which case conclusive and binding on the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requestedBorrower absent manifest error.
2(b) Without limiting the effect of the other foregoing provisions of this SECTION 7.5(B)Section 3.01, in the event that, by reason of any Regulatory Change, any Funding Party the Bank either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that the Bank which includes deposits by reference to which the interest rate on Eurodollar Advances or CD Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that the Bank which includes Eurodollar Advances or CD Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party the Bank so elects by notice to the Company (with a copy to the Administrative Agent)Borrower, the obligation of such Funding Party the Bank to make or continue, or to convert Base Rate Advances into, Eurodollar Advances Loans of such type hereunder shall be suspended until the date such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable)effect.
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 3.01 (but without duplication), the Company Borrower shall pay directly to each Funding Party the Bank from time to time on request such amounts as such Funding Party the Bank may determine to be necessary to compensate suchthe Bank for any costs which it determines are attributable to the maintenance by it or any of its affiliates pursuant to any law or regulation of any jurisdiction or any interpretation, directive or request (whether or not having the force of law and whether in effect on the date of this Agreement or thereafter) of any court or governmental or monetary authority of capital in respect of its Loans hereunder or its obligation to make Loans hereunder (such compensation to include, without limitation, an amount equal to any reduction in return on assets or equity of the Bank to a level below that which it could have achieved but for such law, regulation, interpretation, directive or request). The Bank will notify the Borrower if it is entitled to compensation pursuant to this Section 3.01(c) as promptly as practicable after it determines to request such compensation. If at the time of notice to the Borrower that amounts are due under this Section 3.01(c) the Borrower and the Bank disagree as to the amounts payable, then the Borrower and the Bank shall thereafter attempt to negotiate in good faith an adjustment to the compensation payable hereunder which will adequately compensate the Bank for such costs. If the Borrower and the Bank are unable to agree to such adjustment within thirty days of the day on which the Borrower receives such notice, then commencing as of the date of such notice, the fees payable hereunder shall increase by an amount which will, in the Bank's reasonable determination, compensate the Bank for such costs, the Bank's determination of such amount to be conclusive and binding on the Borrower absent manifest error.
(d) Determinations and allocations by the Bank for purposes of this Section 3.01 of the effect of any Regulatory Change pursuant to subsections (a) or (b), or of the effect of capital maintained pursuant to subsection (c), on its costs of making or maintaining Loans or its obligation to make Loans, or on amounts receivable by, or the rate of return to, it in respect of loans or such obligation, and of the additional amounts required to compensate the Bank under this Section 3.01, shall be conclusive, absent manifest error, provided that such determinations and allocations are made in good faith and allocated among commercial customers of the Bank on a fair and reasonable basis. The Bank shall upon request provide to the Borrower in reasonable detail a copy of calculations done by the bank in making such determinations.
Appears in 1 contract
Additional Costs. 1(a) The Company shall pay directly to each Funding Party Lender from time to time such amounts as such Funding Party Lender may determine to be necessary to compensate such Funding Party Lender for any costs actually incurred by such Funding Party that such Funding Party Lender determines are attributable to its making or maintaining of any Eurodollar Advances Loans or its obligation to make any Eurodollar Advances under the Operative Documents, Loans hereunder or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:
(Ai) shall subject any Funding Party Lender (or its Applicable Lending Office for any of such AdvancesLoans) to any tax, duty or other charge in respect of such Funded Amounts Loans or its Notes or changes the basis of taxation of any amounts payable to such Funding Party Lender under the Operative Documents this Agreement or its Notes in respect of any of such Funded Amounts Loans (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Lender or of such its Applicable Lending Office, in each case, Office by the jurisdiction in which such Funding Party Lender is organized or has its principal office or such in which its Applicable Lending OfficeOffice is organized or located or, in each case, any political subdivision or taxing authority thereof or therein); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, than the Reserve Requirement utilized in the case determination of any Funding Party the Eurodollar Rate for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinsuch Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, any of such Advances Loans or any deposits referred to in the definition definitions of "Eurodollar Base Rate") " in Section 1.01 hereof), or any commitment of such Funding Party Lender (including, without limitation, the Commitments of such Funding Party Lender hereunder); or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Notes (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party Lender requests compensation from the Company under this SECTION 7.5(BSection 5.01(a), the Company may, by notice to such Funding Party Lender (with a copy to the Administrative Agent), suspend the obligation of such Funding Party Lender thereafter to make or continue Continue Eurodollar AdvancesLoans, to Convert Loans of another Type into Eurodollar Loans or to convert Base Rate Advances Convert Eurodollar Loans into Eurodollar Advances, Loans of another Type until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party Lender to receive the compensation so requested.
2(b) Without limiting the effect of the other provisions of paragraph (a) of this SECTION 7.5(B)Section 5.01, in the event that, by reason of any Regulatory Change, any Funding Party either Lender (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party Lender that includes deposits by reference to which the interest rate on Eurodollar Advances Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party Lender that includes Eurodollar Advances Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, hold then, if such Funding Party Lender so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party Lender to make or continueContinue, or to convert Base Rate Advances Convert Loans of another type into, Eurodollar Advances Loans, hereunder (as the case may be) shall be suspended until any such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable).
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company shall pay directly to each Funding Party Lender from time to time on request such amounts as such Funding Party Lender may determine to be necessary to compensate suchsuch Lender (or, without duplication, the bank holding company of which such Lender is a subsidiary) for any costs that it determines are attributable to the maintenance by such Lender (or any Applicable Lending Office or such bank holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of any court or governmental or monetary authority (i) following any Regulatory Change or (ii) hereafter implementing any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) heretofore or hereafter issued by any government or governmental or supervisory authority implementing at the national level the Basle Accord (including, without limitation, the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 C.F.R. Part 208, Appendix A; ▇▇ ▇.▇.▇. ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇) and the Final Risk-Based Capital Guidelines of the Office of the Comptroller of the Currency (12 C.F.R. Part 3, Appendix A)), of capital in respect of its Commitments or Loans (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Lender (or any Applicable Lending Office or such bank holding company) to a level below that which such Lender (or any Applicable Lending Office or such bank holding company) could have achieved but for such law, regulation, interpretation, directive or request). For purposes of this Section 5.01(c) and Section 5.08 hereof, "BASLE ACCORD" shall mean the proposals for risk-based capital framework described by the Basle Committee on Banking Regulations and Supervisory Practices in its paper entitled "International Convergence of Capital Measurement and Capital Standards" dated July 1988, as amended, modified and supplemented and in effect from time to time or any replacement thereof.
Appears in 1 contract
Sources: Credit Agreement (Suiza Foods Corp)
Additional Costs. 1) The Company In addition to, and not in limitation of the immediately preceding clause (a), the Borrower shall promptly pay directly to the Agent for the account of each Funding Party affected Lender from time to time such amounts as such Funding Party Lender may determine to be necessary to compensate such Funding Party Lender for any costs actually incurred by such Funding Party Lender that such Funding Party it determines are attributable to its making or maintaining of any Eurodollar Advances LIBOR Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsLIBOR Loans hereunder, or any reduction in any amount receivable by such Funding Party Lender under this Agreement or any of the Operative other Loan Documents in respect of any of such Advances Loans or such obligation or the maintenance by such Lender of capital in respect of its Loans or its Commitments (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"“Additional Costs”), to the extent resulting from any Regulatory Change that:
: (Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Lender under this Agreement or any of the Operative other Loan Documents in respect of any of such Funded Amounts Loans or its Commitments (excluding (A) franchise taxes imposed on it other than taxes, fees, duties, levies, imposts, charges, deductions, withholdings or other charges which are excluded from the definition of Taxes pursuant to the first sentence of Section 3.12.(a)); or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, than Regulation D of the Board of Governors of the Federal Reserve System or other reserve requirement to the extent utilized in the case determination of any Funding Party LIBOR for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinsuch Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (includingLender, without limitation, any of such Advances or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party Lender (including, without limitation, the Commitments of such Funding Party Lender hereunder); or
or (Ciii) imposes any other condition affecting the Operative Documents (has or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting would have the effect of reducing the other provisions rate of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based return on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities capital of such Funding Party Lender to a level below that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until Lender could have achieved but for such Regulatory Change ceases (taking into consideration such Lender’s policies with respect to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicablecapital adequacy).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate such
Appears in 1 contract
Sources: Credit Agreement (U-Store-It Trust)
Additional Costs. 1(a) The Company shall pay directly to each Funding Party from time to time such amounts as such Funding Party may determine to be necessary to compensate such Funding Party for If, in respect of all or any costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making or maintaining portion of any Eurodollar Advances or its obligation to make Facility A Lender's commitment hereunder, any Eurodollar Advances under the Operative DocumentsRate Borrowing, or any reduction in Fixed Rate Borrowing owed to any amount receivable Facility A Lender (i) any present or future Law shall impose, modify, or deem applicable, or compliance by such Funding Party under Facility A Lender with any requirement (whether or not having the Operative Documents in respect force of Law) of any of such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS")Governmental Authority shall result in, resulting from any Regulatory Change that:
(A) shall subject requirement that any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party under the Operative Documents in respect of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(B) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (including, without limitation, any marginal, emergency, supplemental, special, or other reserves) be maintained, and (ii) any of the same results in a reduction in any sums receivable by such Advances Facility A Lender hereunder or an increase in the costs incurred by such Facility A Lender in advancing or maintaining any portion of any Eurodollar Rate Borrowing or any deposits referred Fixed Rate Borrowing, then (A) such Facility A Lender (through Administrative Agent) shall notify Borrower upon becoming aware of same and deliver to Borrower a certificate setting forth in reasonable detail the definition amount necessary to compensate such Facility A Lender for such reduction or such increase (which certificate shall be conclusive and binding as to such amount, absent manifest error), and (B) Borrower shall promptly pay such amount to such Facility A Lender within ten (10) days after demand therefor.
(b) If with respect to all or any portion of "Eurodollar Rate"any Borrowing or any LC, any present or future Law regarding capital adequacy or compliance by Administrative Agent (as issuer of LCs) or any commitment Facility A Lender or its holding company with any request, directive, or requirement now existing or hereafter imposed by any Governmental Authority regarding capital adequacy (whether or not having the force of such Funding Party (includingLaw), without limitation, the Commitments of such Funding Party hereunder); or
(C) imposes any other condition affecting the Operative Documents (or any change in the risk category of such extensions this transaction shall result in a reduction in the rate of credit return on any Facility A Lender's or liabilities) or Administrative Agent's capital as a consequence of its Commitments. If any Funding Party requests compensation from the Company obligations under this SECTION 7.5(BFacility A Agreement to a level below that which it otherwise could have achieved by an amount deemed by it to be material (and it may, in determining such amount, utilize such assumptions and allocations of costs and expenses as it shall deem reasonable and may use any reasonable averaging or attribution method), the Company may, by notice to such Funding Party then (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting unless the effect of the other provisions of this SECTION 7.5(B), such event is already reflected in the event that, by reason rate of any Regulatory Change, any Funding Party either interest then applicable hereunder) Administrative Agent or such Facility A Lender (ithrough Administrative Agent) incurs Additional Costs based on or measured by shall notify Borrower and deliver to Borrower a certificate setting forth in reasonable detail the excess above a specified level calculation of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate Administrative Agent or such Facility A Lender or its holding company therefor, which certificate shall be conclusive and binding absent manifest error, and Borrower shall promptly pay such amount to Administrative Agent (for the account of such
Appears in 1 contract
Additional Costs. 1(a) The Company shall pay directly to each Funding Party Bank from time to time on request pursuant to paragraph (d) of this ss.
3.01 such amounts as such Funding Party Bank may determine to be necessary to compensate such Funding Party it for any costs actually incurred by which such Funding Party that such Funding Party Bank determines are attributable to its making or maintaining of any Eurodollar Advances Fixed Rate Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsFixed Rate Loans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change thatwhich:
(Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Bank under the Operative Documents this Agreement or its Notes in respect of any of such Funded Amounts Loans (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on measured by the overall net income of such Funding Party Bank or of such its Applicable Lending Office, in each case, Office for any of such Loans by the jurisdiction in which such Funding Party Bank has its principal office or such Applicable Lending Office); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, than in the case of any Funding Party Bank for any period as to which the Company is required to pay any amount under PARAGRAPH 5paragraph (e) below, the reserves and against "Eurocurrency liabilities" under Regulation D therein referred to thereinto) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Bank (including, without limitation, including any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Fixed Base Rate") " in Schedule 1 hereof), or any commitment of such Funding Party Bank (including, without limitation, including the Commitments Commitment of such Funding Party Bank hereunder); or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Notes (or any of such extensions of credit or liabilities) or its CommitmentsCommitment. If any Funding Party Bank requests compensation from the Company under this SECTION 7.5(Bss.3.01(a), the Company may, by notice to such Funding Party Bank (with a copy to the Administrative AgentChase), suspend the obligation of such Funding Party thereafter Bank to make or continue Eurodollar Advances, or additional Loans of the type with respect to convert Base Rate Advances into Eurodollar Advances, which such compensation is requested (in which case the provisions of ss.3.04 hereof shall be applicable) until either (A) the Regulatory Change giving rise to such request ceases to be in effect or (in which case B) such Bank gives notice to the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED Company that it will no longer require the Company to pay Additional Costs arising from such suspension shall not affect the right of such Funding Party to receive the compensation so requestedRegulatory Change.
2(b) Without limiting the effect of the other provisions of paragraph (a) of this SECTION 7.5(B)ss.3.01, in the event that, by reason of any Regulatory Change, any Funding Party Bank either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Bank which includes deposits by reference to which the interest rate on Eurodollar Advances Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that Bank which includes Eurodollar Advances Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party Bank so elects by notice to the Company (with a copy to the Administrative AgentChase), the obligation of such Funding Party Bank to make or continue, or to convert Base Rate Advances into, Eurodollar Advances additional Loans of such type hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) ss.3.04 hereof shall be applicable).
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) ss.3.01 (but without duplication), the Company shall pay directly to each Funding Party Bank from time to time on request pursuant to paragraph (d) of this ss.
3.01 such amounts as such Funding Party Bank may determine to be necessary to compensate suchsuch Bank for any costs which it determines are attributable to the maintenance by such Bank (or any Applicable Lending Office), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law) of any court or governmental or monetary authority (i) following any Regulatory Change or (ii) implementing any risk-based capital guideline or requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) heretofore or hereafter issued by any government or governmental or supervisory authority implementing at the national level the Basle Accord (including, without limitation, the Final Risk Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 CFR Part 208, Appendix A; 12 C▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇) ▇▇d the Final Risk-Based Capital Guidelines of the Office of the Comptroller of the Currency (12 CFR Part 3, Appendix A)), of capital in respect of its Commitment or Loans (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Bank (or any Applicable Lending Office) to a level below that which such Bank (or any Applicable Lending Office) could have achieved but for such law, regulation, interpretation, directive or request). For purposes of this ss.3.01(c), "Basle Accord" shall mean the proposals for risk-based capital framework described by the Basle Committee on Banking Regulations and Supervisory Practices in its paper entitled "International Convergence of Capital Measurement and Capital Standards" dated July 1988, as amended, modified and supplemented and in effect from time to time or any replacement thereof.
Appears in 1 contract
Sources: Credit Agreement (Sonat Inc)
Additional Costs. 1(a) The Company shall pay directly to each Funding Party the Bank from time to time such amounts as such Funding Party the Bank may determine to be necessary to compensate such Funding Party it for any costs actually incurred by such Funding Party that such Funding Party which the Bank determines are attributable to its issuing Letters of Credit or making or maintaining of any Eurodollar Advances Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsLoans hereunder or to issue Letters of Credit hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances Letters of Credit, Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change thatwhich:
(Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party the Bank under this Agreement or the Operative Documents Note in respect of any of such Funded Amounts Letters of Credit or Loans (excluding other than (Ax) franchise taxes imposed on it or (B) changes in the rate of tax on measured by the overall gross or net income or receipts of the Bank or its Applicable Lending Office for any of such Funding Party Loans (or other taxes in lieu of such Applicable Lending Office, in each case, taxes) imposed by the jurisdiction in which such Funding Party the Bank has its principal office or such Applicable Lending OfficeOffice or is engaged in business and (y) withholding taxes imposed by or on behalf of the United States or any taxing authority thereof or therein on amounts received by the Bank from sources in the United States); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, than the Reserve Requirement utilized in the case determination of any Funding Party the Eurodollar Rate for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinsuch Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party the Bank (including, without limitation, including any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Base Rate") " in Section 1.01 hereof), or any commitment of such Funding Party the Bank (including, without limitation, including the Commitments Commitment of such Funding Party the Bank hereunder); or
(Ciii) imposes any other condition affecting this Agreement, any Letter of Credit or the Operative Documents Note (or any of such extensions of credit or liabilities) or its Commitmentsthe Commitment. If any Funding Party the Bank requests compensation from the Company under this SECTION 7.5(BSection 5.01(a), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent)Bank, suspend the obligation of such Funding Party thereafter the Bank to issue Letters of Credit or to make or continue Continue Eurodollar AdvancesLoans, or to convert Convert Base Rate Advances Loans into Eurodollar AdvancesLoans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicableeffect), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2(b) Without limiting the effect of the other provisions of paragraph (a) of this SECTION 7.5(B)Section 5.01, in the event that, by reason of any Regulatory Change, any Funding Party the Bank either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that the Bank which includes deposits by reference to which the interest rate on Eurodollar Advances Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that the Bank which includes Eurodollar Advances Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party the Bank so elects by notice to the Company (with a copy to the Administrative Agent)Company, the obligation of such Funding Party the Bank to make or continueContinue, or to convert Convert Base Rate Advances Loans into, Eurodollar Advances Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable)effect.
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company shall pay directly to each Funding Party the Bank from time to time on request such amounts as such Funding Party the Bank may determine to be necessary to compensate suchthe Bank (or, without duplication, the bank holding company of which the Bank is a subsidiary) for any costs which it determines are attributable to the maintenance by the Bank (or any Applicable Lending Office or such bank holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law) of any court or governmental or monetary authority (i) following any Regulatory Change or (ii) implementing any risk-based capital guideline or requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) heretofore or hereafter issued by any government or governmental or supervisory authority implementing at the national level the Basle Accord (including, without limitation, the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 CFR Part 208, Appendix A; 12 CFR Part 225, Appendix A) and the Final Risk-Based Capital ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇f the Comptroller of the Currency (12 CFR Part 3, Appendix A)), of capital in respect of the Commitment, Letters of Credit or Loans (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of the Bank (or any Applicable Lending Office or such bank holding company) to a level below that which the Bank (or any Applicable Lending Office or such bank holding company) could have achieved but for such law, regulation, interpretation, directive or request). For purposes of this Section 5.01(c), "Basle Accord" shall mean the proposals for risk-based capital framework described by the Basle Committee on Banking Regulations and Supervisory Practices in its paper entitled "International Convergence of Capital Measurement and Capital Standards" dated July 1988, as amended, modified and supplemented and in effect from time to time or any replacement thereof.
Appears in 1 contract
Additional Costs. 1) The Company Borrower shall promptly pay directly to each Funding Party Administrative Agent for the account of a Lender from time to time such amounts as such Funding Party Lender may reasonably and in good faith determine to be necessary to compensate reimburse such Funding Party Lender for any costs actually incurred by such Funding Party Lender that such Funding Party are not reasonably attributable to any act or failure on the part of Administrative Agent or any Lender and that it reasonably and in good faith determines are attributable to its making or maintaining of any Eurodollar Advances LIBOR Rate Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsLIBOR Rate Loans hereunder, or any reduction in any amount receivable by such Funding Party Lender under this Agreement or any of the Operative other Loan Documents in respect of any of such Advances Loans or such obligation or the maintenance by such Lender of capital in respect of its Loans or its Commitment (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"“Additional Costs”), resulting from any Regulatory Change that:
: (Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or materially changes the basis of taxation of any amounts payable to such Funding Party Lender under this Agreement or any of the Operative other Loan Documents in respect of any of such Funded Amounts Loans or its Commitment (excluding (A) franchise other than taxes imposed on it which are excluded from the definition of Taxes pursuant to the first sentence of Section 3.8(a)); or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, than Regulation D of the Board of Governors of the Federal Reserve System or other reserve requirement to the extent utilized in the case determination of any Funding Party the Adjusted LIBOR Rate for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinsuch Loan) relating to to-any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (includingLender, without limitation, any of such Advances or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party Lender (including, without limitation, the Commitments of such Funding Party Lender hereunder); or
or (Ciii) imposes any other condition affecting the Operative Documents (has or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting would have the effect of reducing the other provisions rate of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based return on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities capital of such Funding Party Lender to a level below that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until Lender could have achieved but for such Regulatory Change ceases (taking into consideration such Lender’s policies with respect to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicablecapital adequacy).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate such
Appears in 1 contract
Sources: Construction Loan and Security Agreement (Bluerock Residential Growth REIT, Inc.)
Additional Costs. 1(a) The Company shall pay directly to each Funding Party Bank from time to time such amounts as such Funding Party Bank may determine to be necessary to compensate such Funding Party it for any costs actually incurred by which such Funding Party that such Funding Party Bank determines are attributable to its making or maintaining of any Eurodollar Advances Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsLoans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change thatwhich:
(Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Bank under the Operative Documents this Agreement or its Notes, if any, in respect of any of such Funded Amounts Loans (excluding (A) other than franchise taxes imposed on it or (B) changes in the rate of tax and taxes on the overall net income of such Funding Party Bank or of such its Applicable Lending Office, in each case, Office imposed by the jurisdiction in which such Funding Party Bank is organized or has its principal office or such Applicable Lending Office); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, than the Reserve Requirement utilized in the case determination of any Funding Party the LIBOR Rate for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinsuch Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (including, without limitation, any of such Advances or any deposits referred to in the definition of "Eurodollar Rate") Bank or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder)Bank; or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Notes, if any (or any of such extensions of credit or liabilities) or its Commitments. If Commitment.
(b) Without limiting the effect of the provisions of Section 5.1(a) hereof, the obligation of any Funding Party requests compensation from Bank to make or Continue, or to Convert Alternate Base Rate Loans into, Eurodollar Loans hereunder shall be suspended upon notice to the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, ) until the any Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.4 hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any such Regulatory Change, any Funding Party such Bank either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Bank which includes deposits by reference to which the interest rate on Eurodollar Advances Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.1 (but without duplication), if any Bank determines that compliance with any law or regulation or any guideline or request from any central bank or other governmental authority (whether or not having the force of law) affects or would affect the amount of capital required or expected to be maintained by such Bank or any Person controlling such Bank and that the amount of such capital is increased by or based upon the existence of such Bank's Commitment to lend hereunder and other commitments of this type or any Loan, then, upon demand by such Bank (with a copy of such demand to the Agent), the Company shall immediately pay directly to each Funding Party the Agent for the account of such Bank, from time to time on request as specified by such Bank, additional amounts as sufficient to compensate such Funding Party may determine Bank or such Person in the light of such circumstances, to the extent that such Bank determines such increase in capital to be necessary allocable to compensate suchthe existence of such Bank's Commitment to lend or Loans hereunder.
(d) Each Bank will notify the Company of any event occurring after the date of this Agreement that will entitle such Bank to compensation under paragraph (a) or (c) of this Section 5.1 as promptly as practicable but in any event within 90 days after such Bank obtains actual knowledge thereof; provided, however, that if any Bank fails to give such notice within 90 days after it obtains actual knowledge of such an event, such Bank shall, with respect to compensation payable pursuant to this Section 5.1 in respect of any costs resulting from such event, only be entitled to payment under this Section 5.1 for costs incurred from and after the date 90 days before the date that such Bank does give such notice. Each Bank will furnish to the Company a certificate setting forth the basis and amount of each request by such Bank for compensation under paragraph (a) or (c) of this Section 5.1, which certificate shall be conclusive and binding on the Company in the absence of manifest error. Determinations and allocations by any Bank for purposes of this Section 5.1 of the effect of any Regulatory Change, law, regulation, guideline or request of any central bank or other monetary authority shall be conclusive and binding on the Company absent manifest error.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Ace Hardware Corp)
Additional Costs. 1(a) The Company shall pay directly to each Funding Party from time to time such amounts as such Funding Party may determine to be necessary to compensate such Funding Party for any costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making If, on or maintaining after the date hereof, the adoption of any Eurodollar Advances or its obligation to make any Eurodollar Advances under the Operative DocumentsRequirement of Law, or any reduction change in any amount receivable Requirement of Law, or any change in the interpretation or administration thereof by such Funding Party under any court or other Governmental Authority charged with the Operative Documents in respect of interpretation or administration thereof, or compliance by any of such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:
(A) shall subject any Funding Party Lender (or its Applicable Lending Office for Office) with any request or directive (whether or not having the force of such Advanceslaw) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party under the Operative Documents in respect of Governmental Authority, shall impose, modify or deem applicable any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(B) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party reserve (including, without limitation, any such requirement imposed by the Board of such Advances Governors of the Federal Reserve System), special deposit, contribution, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended by, any deposits referred to in the definition of "Eurodollar Rate"Lender (or its Applicable Lending Office) or shall impose on any commitment of such Funding Party Lender (including, without limitation, or its Applicable Lending Office) or the Commitments of such Funding Party hereunder); or
(C) imposes London interbank market any other condition affecting its Loan, its Note or its Commitment, and the Operative Documents result of any of the foregoing is to increase the cost to such Lender (or any its Applicable Lending Office) of such extensions of credit making or liabilities) or maintaining its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar AdvancesLoan, or to convert Base Rate Advances into Eurodollar Advancesreduce the amount of any sum received or receivable by such Lender (or its Applicable Lending Office) under this Agreement or under its Note, until by an amount reasonably deemed by such Lender to be other than de minimis (other than Taxes, which shall be treated in accordance with Section 5.05 hereof), then from time to time, within ten (10) days after demand by such Lender, the Regulatory Change giving rise Borrower shall pay to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that Lender such suspension shall not affect the right of additional amount or amounts as will compensate such Funding Party to receive the compensation so requestedLender for such increased cost or reduction.
2(b) Without limiting If any Lender shall have determined that, on or after the date hereof, the adoption of any Requirement of Law regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or any request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, has or would have the effect of reducing the other provisions rate of return on capital of such Lender (or its direct or indirect parent) as a consequence of such Lender's obligations hereunder or its Loan to a level below that which such Lender (or its direct or indirect parent) could have achieved but for such adoption, change, request or directive, then from time to time, within ten (10) days after demand by such Lender, the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender (or its direct or indirect parent) for such reduction.
(c) Each Lender will promptly notify the Borrower of any event of which it has knowledge, occurring after the date hereof, which will entitle such Lender to compensation pursuant to this SECTION 7.5(B)Section 5.01. Before or promptly after giving any such notice pursuant to this subsection (c) such Lender shall use commercially reasonable efforts to designate a different Applicable Lending Office if such designation, in the event thatsole and absolute judgment of such Lender, by reason of (x) will avoid the need for, or reduce the amount of, such compensation and (y) will not be disadvantageous to such Lender in any Regulatory Change, respect other than de minimis administrative costs associated with any Funding Party either (i) incurs Additional Costs based on or measured such designation which will be reimbursed in full by the excess above Borrower. Such Lender shall furnish to the Borrower a specified level of certificate setting forth the basis and amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference each request for compensation pursuant to this Section 5.01, which the interest rate on Eurodollar Advances is determined certificate shall provide reasonable details as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to assumptions used in determining such amounts and the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (manner in which case the provisions such amounts were calculated. Determinations and allocations for purposes of SECTION 7.5(Ethis Section 5.01(c) hereof shall be applicable).
3) Without limiting of the effect of the foregoing provisions any change described in paragraph (a) or (b) of this SECTION 7.5(B) (but without duplication)Section 5.01 on such Lender's cost of maintaining its Loan, or on amounts receivable by such Lender in respect of its Loan, and the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary required to compensate suchsuch Lender under this Section 5.01 shall be conclusive and binding for all purposes, absent manifest error, provided that such determinations and allocations are made on a basis reasonably consistent with such Lender's treatment of customers similar to the Borrower having generally similar provisions in their agreements with such Lender.
Appears in 1 contract
Sources: Senior Bridge Loan Agreement (Grupo Aval Acciones Y Valores S.A.)
Additional Costs. 1) The Company shall pay directly Borrower hereby irrevocably agrees to reimburse and indemnify each Funding Party Bank from time to time such amounts as such Funding Party may determine to be necessary to compensate such Funding Party for any all increased costs actually and fees incurred by such Funding Party that Bank in connection with this Agreement subsequent to the date of the Initial Advance of funds to Borrower under this Agreement and relating to or arising from (x) the offering of rates of interest based upon the One-Month LIBOR Rate to the extent such Funding Party determines are attributable to its making costs result from a Change or maintaining (y) a change in government regulation. Without limiting the generality of the foregoing, if (any Eurodollar Advances or its obligation to make of the following being a “Change”): (i) any Eurodollar Advances under the Operative Documentslaw, rule, regulation, guideline, or directive (in each case whether or not having the force of law) is passed, enacted, promulgated, ordered, issued or adopted after the date of the Initial Advance of funds to Borrower under this Agreement, (ii) there is any reduction change after the date of the Initial Advance of funds to Borrower under this Agreement in any amount receivable by such Funding Party under the Operative Documents in respect of any of such Advances law, rule, regulation, guideline, or such obligation directive (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:
(A) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party under the Operative Documents in respect of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by case whether or not having the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(B) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case force of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves law and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (including, without limitation, any request, rule, guideline or directive (A) in connection with the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act (as amended, the “▇▇▇▇-▇▇▇▇▇ Act”) or (B) enacted, promulgated, adopted, issued or implemented by the Bank of such Advances International Settlements, the Basel Committee on Banking Supervision (or any deposits referred to successor or similar authority), or the United States or foreign financial regulatory authorities), or in the definition interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation, application or administration of "Eurodollar any of the foregoing, or (iii) such Bank complies with any request or directive made after the date of the Initial Advance of funds to Borrower under this Agreement regarding capital adequacy (whether or not having the force of law) from any such authority, central bank or comparable agency, and to the extent such Change shall:
(a) increase the cost to a Bank, by an amount which such Bank reasonably deems to be material, of making, converting into, continuing or maintaining any portion of any advance subject to the Interest Rate") , or reduce any commitment of such Funding Party (includingamount receivable hereunder in respect thereof, without limitation, the Commitments of such Funding Party hereunder); or
(Cb) imposes any other condition affecting the Operative Documents (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting have the effect of reducing the other provisions rate of this SECTION 7.5(B)return on a Bank’s capital as a consequence of its obligations hereunder, with respect to any Loan, to a level below that which such Bank could have achieved but for such Change by an amount reasonably deemed by such Bank to be material,
(c) then, in any and each such case, after submission by such Bank to Borrower of a written request therefor, Borrower shall pay such Bank any additional amounts necessary to compensate such Bank for such increased cost or reduction to the event that, by reason extent such costs or reduction is a result of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level change. A Bank’s reasonable determination of the amount of a category such reimbursement shall be conclusive in the absence of deposits or other liabilities manifest error. Notwithstanding anything to the contrary contained herein, for all purposes of such Funding Party that includes deposits by reference to which this Agreement, all requests, rules, guidelines and directives (I) in connection with the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances ▇▇▇▇-▇▇▇▇▇ Act or (iiII) becomes subject to restrictions enacted, promulgated, adopted, issued or implemented by the Bank of International Settlements, the Basel Committee on the amount of such a category of liabilities Banking Supervision (or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agentany successor or similar authority), or the obligation United States or foreign financial regulatory authorities shall, in each case, be deemed to constitute a Change whether or not such request, rule, guideline or directive has the force of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3) Without limiting the effect law and regardless of the foregoing provisions of this SECTION 7.5(B) (but without duplication)date on which such request, the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate suchrule, guideline or directive was enacted, promulgated, adopted, issued or implemented.
Appears in 1 contract
Sources: Syndicated Term Loan Agreement (Strategic Storage Trust IV, Inc.)
Additional Costs. 1Subject to Sections 4.04(c) The Company shall pay directly to each Funding Party from time to time such amounts as such Funding Party may determine to be necessary to compensate such Funding Party for any costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making or maintaining of any Eurodollar Advances or its obligation to make any Eurodollar Advances under the Operative Documents, or any reduction in any amount receivable by such Funding Party under the Operative Documents in respect of any of such Advances or such obligation and (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:d):
(Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation Without duplication of any amounts payable to such Funding Party under described in Section 3.03(c), 4.03 or 4.04(a) or 4.04(b)(ii), if any change in any law or regulation or in the Operative Documents in respect interpretation thereof by any court or administrative or Governmental Authority charged with the administration thereof, or the enactment of any of such Funded Amounts (excluding (A) franchise taxes imposed on it law or (B) changes regulation shall result in the rate of tax on the overall net income of imposition upon any Lender (or such Funding Party or of such Lender's Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
) of (B1) imposes or modifies any reserve, special deposit or similar requirements requirement against any Lender's Commitment, Loans or L/C Obligations or (2) any other thancondition regarding this Agreement, in its Commitment, Loans or L/C Obligations, and the case result of any Funding Party for any period as event referred to in clause (1) or (2) shall be to increase the cost of maintaining such Commitment, Loan or L/C Obligation (which the Company is required increase in cost shall be calculated in accordance with such Lender's reasonable averaging and attribution methods) by an amount which such Lender deems to pay any amount under PARAGRAPH 5) belowbe material, then, upon demand by such Lender, the reserves and "Eurocurrency liabilities" under Regulation D referred Borrower shall pay to thereinsuch Lender an amount equal to such increase in cost; and
(ii) relating to Without duplication of any extensions amounts payable described in Section 3.03(c), 4.03, 4.04(a) or 4.04(b)(i), if any Lender shall have determined that the adoption of credit any applicable law, rule, regulation or other assets ofguideline regarding capital adequacy, or any deposits with or other liabilities ofchange therein, such Funding Party (including, without limitation, any of such Advances or any deposits referred to change in the definition interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, (including any such adoption or change made prior to the date hereof but not effective until after the date hereof) or compliance by such Lender (or such Lender's Applicable Lending Office) with any request or directive regarding capital adequacy (whether or not having the force of "Eurodollar Rate"law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on capital for such Lender (or such Lender's Applicable Lending Office) or any commitment corporation controlling such Lender as a consequence of its obligations under this Agreement to a level below that which such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder); or
(C) imposes any other condition affecting the Operative Documents Lender (or any of such extensions of credit or liabilitiesLender's Applicable Lending Office) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(Bsuch corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender's (or such Lender's Applicable Lending Office) or such corporation's policies with respect to capital adequacy), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party then from time to time on request time, upon demand by such Lender, then the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Funding Party may determine to be necessary to compensate suchLender (or such Lender's Applicable Lending Office) or such corporation for such reduction.
Appears in 1 contract
Additional Costs. (1) The Company Borrowers shall pay directly to each Funding Party Lender from time to time such amounts as such Funding Party Lender may reasonably determine to be necessary to compensate such Funding Party it for any costs actually incurred by such Funding Party that Lender which such Funding Party Lender determines are attributable to its making or maintaining of any Eurodollar Advances Eurocurrency Loans hereunder or its obligation to make any Eurodollar Advances under the Operative Documentsof such Eurocurrency Loans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any of such Advances Eurocurrency Loan or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), in each case resulting from any Regulatory Change thatwhich:
(A1) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Lender under this Agreement or the Operative Documents Note held by such Lender in respect of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office)Eurocurrency Loan; or
(B2) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, including any of such Advances Eurocurrency Loan or any deposits referred to in the definition of "Eurodollar Rate" or ") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunderMulticurrency Rate" below); or
(C3) imposes any other condition affecting the Operative Documents this Agreement or any Note (or any of such extensions of credit or liabilities) or its Commitments). If Each Lender will notify the Borrowers and the Agent of any Funding Party requests event occurring after the date of this Agreement which will entitle such Lender to compensation from pursuant to this Section 4.1 as promptly as practicable after it obtains knowledge thereof and determines to request such compensation. Such Lender will furnish the Company Borrowers and the Agent with a statement, in reasonable detail, setting forth the basis and amount of each request by such Lender for compensation under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requestedSection 4.1.
(2) Without limiting the effect of the other foregoing provisions of this SECTION 7.5(B), Section 4.1 in the event that, by reason of any Regulatory Change, any Funding Party Lender either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Lender which includes deposits by reference to which the interest rate on Eurodollar Advances Eurocurrency Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that Lender which includes Eurodollar Advances Eurocurrency Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party Lender so elects by notice to the Company (with a copy to the Administrative Agent)Borrowers, the obligation of such Funding Party Lender to make or continue, or to convert Base Rate Advances into, Eurodollar Advances Eurocurrency Loans hereunder shall be suspended until the date such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable)effect.
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate such
Appears in 1 contract
Additional Costs. 1) The Company shall pay directly to each Funding Party If any present or future applicable law, which expression, as used herein, includes statutes, rules and regulations thereunder and interpretations thereof by any competent court or by any governmental or other regulatory body or official charged with the administration or the interpretation thereof and requests, directives, instructions and notices at any time or from time to time such amounts as such Funding Party may determine hereafter made upon or otherwise issued to be necessary to compensate such Funding Party for the Metal Lender by any costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making central bank or maintaining other fiscal, monetary or other authority (whether or not having the force of any Eurodollar Advances or its obligation to make any Eurodollar Advances under the Operative Documents, or any reduction in any amount receivable by such Funding Party under the Operative Documents in respect of any of such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"law), resulting from any Regulatory Change thatshall:
(Aa) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) the Metal Lender to any taxtax (except for taxes on income or profits), duty levy, impost, duty, charge, fee, deduction or other charge in withholding of any nature with respect to the making of such Funded Amounts Fixed Rate Consignments, or changes -48-
(b) materially change the basis of taxation (except for changes in taxes on income or profits) of payments to the Metal Lender of the principal of or the interest on Fixed Rate Consignments or any other amounts payable to such Funding Party the Metal Lender under this Agreement for Fixed Rate Consignments, or (c) impose or increase or render applicable (other than to the Operative Documents extent specifically provided for elsewhere in this Agreement) any special deposit, reserve, assessment, liquidity, capital adequacy or other similar requirements (whether or not having the force of law) against assets held by, or deposits in or for the account of, or loans by, or commitments of the Metal Lender as they relate to this Agreement, or (d) impose on the Metal Lender any other conditions or requirements with respect to Fixed Rate Consignments or any class of commitments of which any of Fixed Rate Consignments form a part; (e) and the result of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(B) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (including, without limitation, any of such Advances or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder); or
(C) imposes any other condition affecting the Operative Documents (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either foregoing is: (i) incurs Additional Costs based on to increase the cost to the Metal Lender of making, funding, issuing, renewing, extending or measured by the excess above a specified level maintaining any of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances Fixed Rate Consignments, or (ii) becomes subject to restrictions on reduce the amount of such a category principal, interest or other amount payable to the Metal Lender hereunder on account of liabilities any of the Fixed Rate Consignments, or assets that it may hold(iii) to require the Metal Lender to make any payment or to forego any interest or other sum payable hereunder, the amount of which payment or foregone interest or other sum is calculated by reference to the gross amount of any sum receivable or deemed received by the Metal Lender for the Customers hereunder, then, if and in each such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent)case, the obligation of such Funding Party to make or continueCustomers will, or to convert Base Rate Advances intoupon demand by the Metal Lender, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party at any time and from time to time on request and as often as the occasion therefor may arise, pay to the Metal Lender such additional amounts as such Funding Party may determine to will be necessary sufficient to compensate suchthe Metal Lender for such additional cost, reduction, payment or foregone interest or other sum.
Appears in 1 contract
Additional Costs. 1(a) The Company Borrower shall pay directly to each Funding Party Bank from time to time on demand such amounts as such Funding Party Bank may determine to be necessary to compensate such Funding Party it for any costs actually incurred by which such Funding Party that such Funding Party Bank determines are attributable to its making or maintaining of any Eurodollar Advances Loans or Fed Funds Rate Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsLoans or Fed Funds Rate Loans hereunder, or any reduction in any amount received or receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances Eurodollar Loans or Fed Funds Rate Loans or such obligation (such increases in costs and reductions in amounts received or receivable being herein called "ADDITIONAL COSTS" Additional Costs "), resulting from any Regulatory Change thatwhich:
(Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Bank under the Operative Documents in respect of any of such Funded Amounts this Agreement or its Note (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Bank or of such its Applicable Lending Office, in each case, Office imposed by the United States of America or by the jurisdiction in which such Funding Party Bank has its principal office or such Applicable Lending Office); or;
(Bii) imposes imposes, modifies, or modifies deems applicable any reserve, special deposit deposit, or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (including, without limitation, any Bank or the Commitment of such Advances Bank in respect of Eurodollar Loans or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder)Fed Funds Rate Loans; or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Note (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation Commitment in respect of such Funding Party thereafter to make Eurodollar Loans or continue Eurodollar Advances, or to convert Base Fed Funds Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requestedLoans.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3b) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 4.1 (but without duplication), the Company Borrower shall pay directly to each Funding Party Bank from time to time on request demand such amounts as such Funding Party Bank may determine to be necessary to compensate suchsuch Bank or any Person controlling such Bank for any increased costs which it determines are attributable to the maintenance by such Bank or such Person (or any Applicable Lending Office) of capital in respect of such Bank’s Commitment or Loans as a result of any Regulatory Change, such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Bank or such Person (or any Applicable Lending Office) to a level below that which such Bank or such Person (or any Applicable Lending Office), taking into account its policies concerning capital adequacy, could have achieved but for such Regulatory Change.
(c) Each Bank will notify the Borrower of any event occurring after the date of this Agreement that will entitle such Bank to compensation under paragraph (a) or (b) of this Section 4.1 as promptly as practicable. Together with the delivery of such notice, the relevant Bank will furnish to the Borrower a certificate setting forth the basis and amount of each request by such Bank for compensation under paragraph (a) or (b) of this Section 4.1 . Determinations and allocations by any Bank for purposes of this Section 4.1 of the effect of any Regulatory Change, law, regulation, or request of any central bank or other monetary authority and computations of amounts payable set forth in the certificate referred to in the preceding sentence shall be made in good faith and shall be conclusive and binding on the Borrower in the absence of manifest error.
Appears in 1 contract
Additional Costs. 1(a) The Company shall pay directly to each Funding Party Bank from time to time such amounts as such Funding Party Bank may determine to be necessary to compensate such Funding Party Bank for any costs actually incurred by such Funding Party that such Funding Party Bank determines are attributable to its making or maintaining of any Eurodollar Advances Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsLoans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change that:
(Ai) shall subject any Funding Party Bank (or its Applicable Lending Office for any of such AdvancesLoans) to any tax, duty or other charge in respect of such Funded Amounts Loans or its Notes or changes the basis of taxation of any amounts payable to such Funding Party Bank under the Operative Documents this Agreement or its Notes in respect of any of such Funded Amounts Loans (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Bank or of such Applicable Lending Office, in each case, Office by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending OfficeOffice or the Principal Office is located); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, than the Reserve Requirement utilized in the case determination of any Funding Party the Eurodollar Rate for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinsuch Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Bank (including, without limitation, any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Base Rate") " in Section 1.01 hereof), or any commitment of such Funding Party Bank (including, without limitation, the Commitments Commitment of such Funding Party Bank hereunder); or
(Ciii) imposes any other condition affecting this Agreement or the Operative Documents Note (or any of such extensions of credit or liabilities) or its Commitmentsthe Commitment. If any Funding Party Bank requests compensation from the Company under this SECTION 7.5(BSection 5.01(a), the Company may, by notice to such Funding Party Bank (with a copy to the Administrative Agent), suspend the obligation of such Funding Party Bank thereafter to make or continue Continue Eurodollar AdvancesLoans, or to convert Convert Base Rate Advances Loans into Eurodollar AdvancesLoans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicableeffect), PROVIDED provided that such suspension shall not affect the right of such Funding Party Bank to receive the compensation so requested.
2(b) Without limiting the effect of the other provisions of paragraph (a) of this SECTION 7.5(B)Section 5.01, in the event that, by reason of any Regulatory Change, any Funding Party Bank either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party Bank that includes deposits by reference to which the interest rate on Eurodollar Advances Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party Bank that includes Eurodollar Advances Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party Bank so elects by notice to the Company (with a copy to the Administrative Agent)Company, the obligation of such Funding Party Bank to make or continueContinue, or to convert Convert Base Rate Advances Loans into, Eurodollar Advances Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case and the provisions Company shall, upon the request of SECTION 7.5(E) hereof shall be applicable)such Bank, prepay any of such Loans then outstanding hereunder together with accrued interest thereon.
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company shall pay directly to each Funding Party Bank from time to time on request such amounts as such Funding Party Bank may determine to be necessary to compensate suchsuch Bank (or, without duplication, the bank holding company of which such Bank is a subsidiary) for any costs that it determines are attributable to the maintenance by such Bank (or any Applicable Lending Office or such bank holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of any court or governmental or monetary authority (i) following any Regulatory Change or (ii) implementing any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) heretofore or hereafter issued by any government or governmental or supervisory authority implementing at the national level the Basle Accord (including, without limitation, the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 C.F.R. Part 208, Appendix A; ▇▇ ▇.▇.▇. ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇) and the Final Risk-Based Capital Guidelines of the Office of the Comptroller of the Currency (12 C.F.R. Part 3, Appendix A)), of capital in respect of its Commitments or Loans (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Bank (or any Applicable Lending Office or such bank holding company) to a level below that which such Bank (or any Applicable Lending Office or such bank holding company) could have achieved but for such law, regulation, interpretation, directive or request). For purposes of this Section 5.01(c) and Section 5.05 hereof, "Basle Accord" shall mean the proposals for risk-based capital framework described by the Basle Committee on Banking Regulations and Supervisory Practices in its paper entitled "International Convergence of Capital Measurement and Capital Standards" dated July 1988, as amended, modified and supplemented and in effect from time to time or any replacement thereof.
Appears in 1 contract
Additional Costs. 1(a) The Company Borrower shall pay directly to reimburse each Funding Party from time to time such amounts as such Funding Party may determine to be necessary to compensate such Funding Party Lender for any increase in such Lender’s costs actually incurred (which shall include, but not be limited to, taxes, other than Taxes and documentary or similar taxes, which shall be governed by such Funding Party Sections 9.1 and 11.3(b), respectively, and taxes that such Funding Party determines are attributable to its making specifically excluded from the definition of Taxes, as described in Section 9.1, fees or maintaining of any Eurodollar Advances or its obligation to make any Eurodollar Advances under the Operative Documentscharges), or any reduction in any amount receivable by such Funding Party under the Operative Documents in respect of any of such Advances loss or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:
(A) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party under the Operative Documents in respect of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(B) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party expense (including, without limitation, any of such Advances loss or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder); or
(C) imposes any other condition affecting the Operative Documents (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, expense incurred by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on the liquidation or measured by the excess above a specified level of the amount of a category re-employment of deposits or other liabilities funds acquired by such Lender to fund or maintain outstanding the principal amount of such Funding Party that includes deposits the Loans) incurred by reference to which it directly or indirectly resulting from the interest rate on Eurodollar Advances is determined as provided in this Master Agreement making of any LIBOR Lending Rate Portion due to: (i) the modification, adoption, or a category enactment of extensions of credit any law, rule, regulation or treaty or the interpretation thereof by any governmental or other assets authority (whether or not having the force of such Funding Party that includes Eurodollar Advances or law) which becomes effective after the date hereof; (ii) the modification or new application of any law, regulation or treaty or the interpretation thereof by any governmental or other authority (whether or not having the force of law) which becomes subject effective after the date hereof; (iii) compliance by such Lender with any request or directive (whether or not having the force of law) of any monetary or fiscal agency or authority which becomes effective after the date hereof; (iv) violations by Borrower of the terms of this Agreement; or (v) any prepayment of a LIBOR Lending Rate Portion at any time prior to restrictions on the end of the applicable Interest Period, including pursuant to Section 8.2.
(b) With respect to LIBOR Lending Rate Portions, the amount of such costs, losses, or expenses shall be determined solely by such Lender based upon the assumption that such Lender funded one hundred percent (100%) of each LIBOR Lending Rate Portion in the LIBOR market. In attributing such Lender’s general costs relating to its eurocurrency operations to any transaction under this Agreement or averaging any costs over a category period of liabilities time, such Lender may use any reasonable attribution or assets that averaging methods which it may hold, thendeems appropriate and practical. Such Lender shall notify Borrower of the amount due such Lender pursuant to this Section 2.6 and Borrower shall pay to such Lender the amount due within fifteen (15) days of its receipt of such notice. A certificate as to the amounts payable pursuant to the foregoing sentence together with whatever detail is reasonably available to such Lender shall be submitted by such Lender to Borrower. Such determination shall, if not objected to within ten (10) days, be conclusive and binding upon Borrower in the absence of manifest error. If such Funding Party Lender claims increased costs, loss, or expenses pursuant to this Section 2.6, then such Lender, if requested by Borrower, shall use reasonable efforts to take such steps that Borrower reasonably requests, including designating different Lending Offices, as would eliminate or reduce the amount of such increased costs, losses, or expenses, so elects long as taking such steps would not, in the reasonable judgment of such Lender, otherwise be disadvantageous to such Lender. Any recovery by notice such Lender or its Lending Office of amounts previously borne by Borrower pursuant to the Company this Section 2.6 shall be promptly remitted, without interest (with a copy to the unless Administrative AgentAgent received interest on such recovered amounts), the obligation of to Borrower by such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable)Lender.
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate such
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Motorcar Parts America Inc)
Additional Costs. 1(a) The Company shall pay directly to each Funding Party Lender from time to time such amounts as such Funding Party Lender may determine to be CREDIT AGREEMENT necessary to compensate such Funding Party Lender for any costs actually incurred by such Funding Party that such Funding Party Lender determines are attributable to its making or maintaining of any Eurodollar Advances Loans or its obligation to make any Eurodollar Advances under the Operative Documents, Loans hereunder or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:
(Ai) shall subject any Funding Party Lender (or its Applicable Lending Office for any of such AdvancesLoans) to any tax, duty or other charge in respect of such Funded Amounts Loans or its Notes or changes the basis of taxation of any amounts payable to such Funding Party Lender under the Operative Documents this Agreement or its Notes in respect of any of such Funded Amounts Loans (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Lender or of such its Applicable Lending Office, in each case, Office by the jurisdiction in which such Funding Party Lender is organized or has its principal office or such in which its Applicable Lending OfficeOffice is organized or located or, in each case, any political subdivision or taxing authority thereof or therein); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, than the Reserve Requirement utilized in the case determination of any Funding Party the Eurodollar Rate for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinsuch Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, any of such Advances Loans or any deposits referred to in the definition definitions of "Eurodollar Base Rate") " in Section 1.01 hereof), or any commitment of such Funding Party Lender (including, without limitation, the Commitments of such Funding Party Lender hereunder); or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Notes (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party Lender requests compensation from the Company under this SECTION 7.5(BSection 5.01(a), the Company may, by notice to such Funding Party Lender (with a copy to the Administrative Agent), suspend the obligation of such Funding Party Lender thereafter to make or continue Continue Eurodollar AdvancesLoans, to Convert Loans of another Type into Eurodollar Loans or to convert Base Rate Advances Convert Eurodollar Loans into Eurodollar Advances, Loans of another Type until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable), CREDIT AGREEMENT PROVIDED that such suspension shall not affect the right of such Funding Party Lender to receive the compensation so requested.
2(b) Without limiting the effect of the other provisions of paragraph (a) of this SECTION 7.5(B)Section 5.01, in the event that, by reason of any Regulatory Change, any Funding Party either Lender (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party Lender that includes deposits by reference to which the interest rate on Eurodollar Advances Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party Lender that includes Eurodollar Advances Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, hold then, if such Funding Party Lender so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party Lender to make or continueContinue, or to convert Base Rate Advances Convert Loans of another type into, Eurodollar Advances Loans, hereunder (as the case may be) shall be suspended until any such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable).
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company shall pay directly to each Funding Party Lender from time to time on request such amounts as such Funding Party Lender may determine to be necessary to compensate suchsuch Lender (or, without duplication, the bank holding company of which such Lender is a subsidiary) for any costs that it determines are attributable to the maintenance by such Lender (or any Applicable Lending Office or such bank holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of any court or governmental or monetary authority (i) following any Regulatory Change or (ii) hereafter implementing any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) heretofore or hereafter issued by any government or governmental or supervisory authority implementing at the national level the Basle Accord (including, without limitation, the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 C.F.R. Part 208, Appendix A; ▇▇ ▇.▇.▇. ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇) and the Final Risk-Based Capital Guidelines of the Office of the Comptroller of the Currency (12 C.F.R. Part 3, Appendix A)), of capital in respect of its Commitments or CREDIT AGREEMENT
Appears in 1 contract
Sources: Credit Agreement (Suiza Foods Corp)
Additional Costs. 1(a) The Company Borrower shall pay directly to each Funding Party the Bank from time to time on demand such amounts as such Funding Party the Bank may determine (in the manner set forth in Section 5.01(d)) to be necessary to compensate such Funding Party it for any increases in costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making or maintaining of any Eurodollar Advances LIBOR Loans under this Agreement or its Note or its obligation to make any Eurodollar Advances under the Operative Documents, LIBOR Loans hereunder or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances LIBOR Loans or such obligation or capital in respect of this Agreement (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change that:
which: (Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party the Bank under this Agreement or the Operative Documents Revolving Credit Note in respect of any of such Funded Amounts LIBOR Loans (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, the Bank for any LIBOR Loans by the jurisdiction in which such Funding Party the Bank has its principal office or such Applicable Lending Officeoffice); or
or (Bii) imposes or modifies any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party the Bank; or (including, without limitation, any of such Advances or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder); or
(Ciii) imposes any other condition affecting this Agreement or the Operative Documents Note (or any of such extensions of credit or liabilities) or its Commitments). The Bank will notify Borrower of any event occurring after the date of this Agreement which will entitle the Bank to compensation pursuant to this Section as promptly as practicable after it obtains knowledge thereof by furnishing Borrower a written statement describing the Additional Costs entitling it to compensation hereunder and the Bank's method of allocating to Borrower such Additional Costs. If any Funding Party the Bank requests compensation from the Company Borrower under this SECTION 7.5(BSection or under Section 5.01(c), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), Borrower may suspend the obligation of such Funding Party thereafter the Bank to make or continue Eurodollar Advances, or Loans of the type with respect to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to which such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so is requested.
2(b) Without limiting the effect of the other foregoing provisions of this SECTION 7.5(B)Section, in the event that, if by reason of any Regulatory Change, any Funding Party the Bank either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that the Bank which includes deposits by reference to which the interest rate on Eurodollar Advances LIBOR Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that the Bank which includes Eurodollar Advances LIBOR Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party the Bank so elects by notice to the Company (with a copy to the Administrative Agent)Borrower, the obligation of such Funding Party the Bank to make or continue, or to convert Base Rate Advances into, Eurodollar Advances Loans of such type hereunder shall be suspended until the date such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable)effect.
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication)Section, the Company Borrower shall pay directly to each Funding Party the Bank from time to time on request such amounts as such Funding Party the Bank may determine (in the manner set forth in Section 5.01(d)) to be necessary to compensate suchthe Bank for any Additional Costs which are attributable to the maintenance by it or any of its affiliates (pursuant to any Regulatory Change) of capital in respect of its Loans hereunder or its obligation to make Loans hereunder (such compensation to include, without limitation, an amount equal to any reduction in return on assets or equity of the Bank to a level below that which it would have achieved but for such Regulatory Change). The Bank will notify Borrower if it is entitled to compensation pursuant to this Section as promptly as practicable after it obtains knowledge thereof by furnishing Borrower with a written statement describing the Additional Costs entitling it to compensation hereunder and the Bank's method of allocating to Borrower such Additional Costs.
(d) Reasonable determinations and allocations by the Bank for purposes of the effect of any Regulatory Change pursuant to Sections 5.01(a), (b) or (c) on its costs of making or maintaining Loans or its obligation to make Loans, or on amounts receivable by, or the rate of return to, it in respect of Loans or such obligation, and of the additional amounts required to compensate the Bank, shall be conclusive absent demonstrated error.
Appears in 1 contract
Additional Costs. 1) The Company Borrower shall promptly pay directly to each Funding Party the Agent for the account of a Lender from time to time such amounts as such Funding Party Lender may reasonably determine to be necessary to compensate such Funding Party Lender for any costs actually incurred by such Funding Party Lender that such Funding Party it determines are attributable to its making or maintaining of any Eurodollar Advances LIBOR Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsLIBOR Loans hereunder, or any reduction in any amount receivable by such Funding Party Lender under this Agreement or any of the Operative other Loan Documents in respect of any of such Advances Loans or such obligation obligations or the maintenance by such Lender of capital in respect of its Loans or its Commitment (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change that:
: (Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Lender under this Agreement or any of the Operative other Loan Documents in respect of any of such Funded Amounts Loans or its Commitments (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on measured by the overall net income of such Funding Party Lender or of its Lending Office for any of such Applicable Lending Office, in each case, Loans by the jurisdiction in which such Funding Party Lender has its principal office or such Applicable Lending Office); or
or (Bii) imposes or modifies any reserve, special deposit or similar requirements (other thanincluding, in the case of without limitation, any Funding Party for any period as to which the Company is reserves required to pay any amount under PARAGRAPH 5be maintained against (1) below, the reserves and "Eurocurrency liabilities" under as specified in Regulation D referred of the Board of Governors of the Federal Reserve System or (2) any other category of liabilities which includes deposits by reference to thereinwhich the interest rate on -33- 39 LIBOR Loans is determined or (3) any category of extensions of credit or other assets which includes loans by an office of any Lender outside of the United States of America to residents of the United States of America)) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (includingLender, without limitation, any of such Advances or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party Lender (including, without limitation, the Commitments of such Funding Party hereunderLender); or
or (Ciii) imposes any other condition affecting the Operative Documents (has or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting would have the effect of reducing the other provisions rate of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based return on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities capital of such Funding Party Lender to a level below that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until Lender could have achieved but for such Regulatory Change ceases (taking into consideration such Lender's policies with respect to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicablecapital adequacy).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate such
Appears in 1 contract
Additional Costs. 1(i) The Company Borrower shall pay directly to each Funding Party Bank from time to time such amounts as such Funding Party Bank may determine to be necessary to compensate such Funding Party it for any costs actually incurred by such Funding Party that Bank which such Funding Party Bank determines are attributable to its making or maintaining of any Eurodollar Advances LIBOR Loans or its obligation to make any Eurodollar Advances under the Operative Documents, Total Commitment hereunder or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances Loans or such obligation Total Commitments (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change that:
which: (Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Bank under the Operative Documents this Agreement or its Note in respect of any of such Funded Amounts Loans (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Bank or its Applicable Lending Office for any of such Applicable Lending Office, in each case, Loans by the jurisdiction in which such Funding Party Bank has its principal office or such Applicable Lending Office); or
or (Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Bank (including, without limitation, any of such Advances or including any deposits referred to in the definition of "Eurodollar LIBOR Base Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder" in Article 1 hereof); or
or (Ciii) imposes any other condition conditions affecting this Agreement in respect of the Operative Documents (or LIBOR Loans. Each Bank will notify the Borrower and the Agent of any event occurring after the date of this Agreement which will entitle such extensions Bank to compensation pursuant to this Section 2.20 as promptly as practicable after it obtains knowledge thereof and determines to request such compensation. Each Bank will furnish the Borrower and the Agent with a certificate setting forth the basis and amount of credit or liabilities) or its Commitments. If any Funding Party requests each request for such Bank for compensation from the Company Borrower under this SECTION 7.5(B), the Company Section 2.20. The Borrower may, by notice to such Funding Party Bank (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED require that such suspension shall not affect Bank's Loans of the right of type with respect to which such Funding Party to receive compensation is requested be converted into Prime Rate Loans or LIBOR Loans, as the compensation so requestedcase may be, in accordance with Sections 2.8 and 2.23 hereof.
2(ii) Without limiting the effect of the other foregoing provisions of this SECTION 7.5(B)Section 2.20, in the event that, by reason of any Regulatory Change, any Funding Party Bank either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Bank which includes deposits by reference to which the interest rate on Eurodollar Advances LIBOR Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that Bank which includes Eurodollar Advances LIBOR Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party Bank so elects by notice to the Company Borrower (with a copy to the Administrative Agent), the obligation of such Funding Party Bank to make or continuemake, or and to convert Base Rate Advances Loans of any other type into, Eurodollar Advances Loans of such type hereunder shall be suspended until the date such Regulatory Change ceases to be in effect (in which case the provisions and all Loans of SECTION 7.5(E) hereof such type of such Bank then outstanding shall be applicableconverted into Prime Rate Loans or LIBOR Loans, as the case may be, in accordance with Section 2.8 and 2.23 hereof).
3(b) Without limiting If any existing or future law or regulation or the effect interpretation thereof by any court or administrative or governmental authority charged with the administration thereof, or compliance by any Bank with any request or directive (whether or not having the force of law) of any such authority, either imposes, modifies, deems applicable or results in the application of, any capital maintenance, capital ratio or similar requirement against loan commitments made by any Bank and the result thereof is to impose upon such Bank or increase any capital requirement applicable as a result of the foregoing provisions making or maintenance of this SECTION 7.5(Bsuch Bank's Total Commitment (which imposition of or increase in capital requirements may be determined by the Bank's reasonable allocation of the aggregate of such capital impositions or increases) then, upon demand by such Bank (but without duplicationa copy of which demand shall be delivered to the Agent), the Company Borrower shall immediately pay directly to each Funding Party the Bank from time to time on request specified by the Bank, such amounts additional fees as such Funding Party may determine to shall be necessary sufficient to compensate suchthe Bank for such imposition of or increase in capital require- ments. Such Bank will furnish the Borrower and the Agent with a certificate setting forth the basis and amount of each request by such Bank for compensation from the Borrower under this Section 2.20. The Borrower may, by notice to such Bank (with a copy to the Agent), require that such Bank's Loans of the type with respect to which such compensation is requested be converted into Prime Rate Loans or LIBOR Loans, as the case may be, in accordance with Section 2.8 and 2.23 hereof.
(c) Determinations by any Bank for purposes of this Section 2.20 of the effect of any Regulatory Change on its costs of making or maintaining Loans or on amounts receivable by it in respect of Loans, and of the additional amounts required to compensate such Bank in respect of any Additional Costs, shall be conclusive, absent manifest error.
Appears in 1 contract
Sources: Loan Agreement (National Consumer Cooperative Bank /Dc/)
Additional Costs. 1(a) The Company shall pay directly to each Funding Party Lender from time to time such amounts as such Funding Party Lender may determine to be reasonably necessary to compensate such Funding Party Lender for any costs actually incurred by such Funding Party that such Funding Party determines Lender determines, in good faith, are attributable to its making or maintaining of any Eurodollar Advances Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsLoans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any of such Advances Eurodollar Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:
(Ai) shall subject any Funding Party Lender (or its Applicable Lending Office for any of such AdvancesLoans) to any tax, duty or other charge in respect of such Funded Amounts Loans or changes the basis of taxation of any amounts payable to such Funding Party Lender under the Operative Documents this Agreement in respect of any of such Funded Amounts Loans (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party CREDIT AGREEMENT Lender or of such Applicable Lending Office, in each case, Office by the jurisdiction in which such Funding Party Lender has its principal office or such Applicable Lending Office); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, than the Reserve Requirement utilized in the case determination of any Funding Party the Eurodollar Rate for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinsuch Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Base Rate") " in Section 1.01 hereof), or any commitment of such Funding Party Lender (including, without limitation, the Commitments of such Funding Party Lender hereunder); or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party Lender requests compensation from the Company under this SECTION 7.5(BSection 5.01(a), the Company may, by notice to such Funding Party Lender (with a copy to the Administrative Agent), suspend the obligation of such Funding Party Lender thereafter to make or continue Continue Eurodollar AdvancesLoans, or to convert Convert Base Rate Advances Loans into Eurodollar AdvancesLoans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party Lender to receive the compensation so requested.
2(b) Without limiting the effect of the other provisions of paragraph (a) of this SECTION 7.5(BSection 5.01 (but without duplication), in the event that, by reason of any Regulatory Change, any Funding Party Lender either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party Lender that includes deposits by reference to which the interest rate on Eurodollar Advances Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party Lender that includes Eurodollar Advances Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party Lender so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party Lender to make or continueContinue, or to convert Convert Base Rate Advances Loans into, Eurodollar Advances Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable).
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company shall pay directly to each Funding Party Lender from time to time on request such amounts as such Funding Party Lender may determine to be necessary to compensate suchsuch Lender (or, without duplication, the bank holding company of which such Lender is a subsidiary) for any costs that it determines are attributable to the maintenance by such Lender (or any Applicable Lending Office or such bank holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of any court or governmental or monetary authority (i) following any Regulatory Change or (ii) implementing any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) hereafter issued by any government or governmental or supervisory authority implementing at the national level the Basle Accord CREDIT AGREEMENT
Appears in 1 contract
Additional Costs. 1(a) The Company shall pay directly to each Funding Party any Bank from time to time such amounts as such Funding Party Bank may determine to be necessary to compensate such Funding Party it for any costs actually incurred by which such Funding Party that such Funding Party Bank determines are attributable to its making or maintaining of any Eurodollar Advances Rate Loans, or its obligation to make any Eurodollar Advances under the Operative Documentssuch Loans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances Loans or such obligation obligations (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"“Additional Costs”), resulting from any Regulatory Change that:
which: (A) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party under the Operative Documents in respect of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(Bi) imposes or modifies any reserve, special deposit deposit, minimum capital, capital ratio or similar requirements (other thanrequirements, to the extent not included within the definition of “Reserve Requirement” in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) belowSection 1.01 hereof, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Bank (including, without limitation, including any of such Advances Loans or any deposits referred to in the definition of "Eurodollar “LIBOR Rate") ” in Section 1.01 hereof), or any commitment commitments of such Funding Party Bank; or (including, without limitation, the Commitments of such Funding Party hereunder); or
(Cii) imposes any other condition affecting this Agreement or the Operative Documents Notes (or any of such extensions of credit or liabilities) or its CommitmentsCommitment (other than with respect to taxes (including any Taxes or Other Taxes), Section 5 hereof being the sole remedy of such Bank with respect thereto). If any Funding Party requests compensation from Such Bank will notify the Company under and the Agent of any event occurring after the date of this SECTION 7.5(B)Agreement which will entitle such Bank to compensation pursuant to this Section 6.01(a) as promptly as practicable after it obtains knowledge thereof and shall determine as promptly as practicable after delivery of such notice whether it will determine to request such compensation, and such Bank will designate a different Applicable Lending Office for the Loans affected by such event if such designation will avoid the need for, or, if unavoidable, reduce the amount of, such compensation and will not, in the sole opinion of such Bank, be disadvantageous to such Bank, provided that such Bank shall have no obligation to so designate an Applicable Lending Office located in the United States. Each Bank will furnish the Company may, by notice to such Funding Party (with a copy to the Administrative Agent) with a certificate setting forth the basis and amount of each request by such Bank for compensation under this Section 6.01(a), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2(b) Without limiting the effect of the other provisions of this SECTION 7.5(B)Section 6.01(a) hereof, in the event that, by reason of any Regulatory Change, any Funding Party Bank either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Bank which includes deposits by reference to which the interest rate on Eurodollar Advances Rate Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that Bank which includes Eurodollar Advances Rate Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party Bank so elects by notice to the Company (with a copy to Agent and the Administrative Agent)Company, the obligation of such Funding Party Bank to make or continue, or to convert Base Rate Advances into, Eurodollar Advances additional Loans of such Type hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable)effect.
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 6.01 (but without duplication), the Company shall pay directly to each Funding Party Bank from time to time on request such amounts as such Funding Party Bank may determine to be necessary to compensate suchsuch Bank for any costs which it determines are attributable to the maintenance by such Bank or any of its affiliates, as a result of a Regulatory Change, of capital in respect of its maintaining Loans hereunder or its obligation to make Loans hereunder (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Bank to a level below that which such Bank could have achieved but for such law, regulation, interpretation, directive or request). Each Bank will notify the Company that it is entitled to compensation pursuant to this Section 6.01(c) as promptly as practicable after it obtains knowledge thereof and shall determine as promptly as practicable after delivery of such notice whether it will determine to request such compensation, and such Bank will designate a different Applicable Lending Office for the Loans affected by such event if such designation will avoid the need for, or, if unavoidable, reduce the amount of, such compensation and will not, in the sole opinion of such Bank, be disadvantageous to such Bank, provided that such Bank shall have no obligation to so designate an Applicable Lending Office located in the United States. Each Bank will furnish the Company (with a copy to the Agent) with a certificate setting forth the basis and amount of each request by such Bank for compensation under this Section 6.01(c).
(d) Determinations and allocations by any Bank for purposes of this Section 6.01 of the effect of any Regulatory Change on its costs of making or maintaining Loans or maintaining its obligations to make Loans or on amounts receivable by it in respect of its Loans or such obligations, and of the additional amounts required to compensate such Bank in respect of any Additional Costs, shall be conclusive, provided that such determinations and allocations are made on a reasonable basis.
(e) If any Bank requests compensation for Additional Costs from the Company under Section 6.01(a) hereof, the Company may either (i) prepay in full all Eurodollar Rate Loans of all Banks then outstanding, together with interest accrued thereon, in accordance with Section 4.02 hereof, or (ii) Convert all Eurodollar Rate Loans of all Banks in accordance with Section 3.03 hereof, and in each case the Company shall also pay such Additional Costs to such Bank in accordance with this Section 6.01 on the date of such prepayment or Conversion, as the case may be.
(f) Failure or delay on the part of any Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Bank’s right to demand such compensation; provided that the Company shall not be required to compensate a Bank pursuant to this Section for any increased costs or reductions incurred more than 270 days prior to the date that such Bank notifies the Company of the Regulatory Change giving rise to such increased costs or reductions and of such Bank’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 270-day period referred to above shall be extended to include the period of retroactive effect thereof.
Appears in 1 contract
Additional Costs. 1(a) The Company Borrower shall pay directly to each Funding Party Lender from time to time such amounts as such Funding Party Lender may determine to be necessary to compensate such Funding Party Lender for any costs actually incurred by such Funding Party that such Funding Party Lender determines are attributable to its making or maintaining of any Eurodollar Advances Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsLoans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change that:
(Ai) shall subject any Funding Party Lender (or its Applicable Lending Office for any of such AdvancesLoans) to any tax, duty or other charge in respect of such Funded Amounts Loans or its Notes or changes the basis of taxation of any amounts payable to such Funding Party Lender under the Operative Documents this Agreement or its Notes in respect of any of such Funded Amounts Loans (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Lender or of such Applicable Lending Office, in each case, Office by the jurisdiction in which such Funding Party Lender has its principal office or such Applicable Lending Office); oror Credit Agreement
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, than the Reserve Requirement used in the case determination of any Funding Party the Eurodollar Rate for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinInterest Period for such Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Base Rate") " in Section 1.01), or any commitment of such Funding Party Lender (including, without limitation, the Commitments of such Funding Party Lender hereunder); or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Notes (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party Lender requests compensation from the Company Borrower under this SECTION 7.5(B)paragraph, the Company Borrower may, by notice to such Funding Party Lender (with a copy to the Administrative Agent), suspend the obligation of such Funding Party Lender thereafter to make or continue Continue Eurodollar AdvancesLoans, or to convert Base Rate Advances Convert Loans of any other Type into Eurodollar AdvancesLoans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof Section 5.04 shall be applicable), PROVIDED provided that such suspension shall not affect the right of such Funding Party Lender to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3b) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company Borrower shall pay directly to each Funding Party Lender from time to time on request such amounts as such Funding Party Lender may determine to be necessary to compensate suchsuch Lender (or, without duplication, the bank holding company of which such Lender is a subsidiary) for any costs that it determines are attributable to the maintenance by such Lender (or any Applicable Lending Office or such bank holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of any court or governmental or monetary authority (i) following any Regulatory Change or (ii) implementing any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) hereafter issued by any government or governmental or supervisory authority implementing at the national level the Basle Accord, of capital in respect of its Commitments or Loans (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Lender (or any Applicable Lending Office or such bank holding company) to a level below Credit Agreement that which such Lender (or any Applicable Lending Office or such bank holding company) could have achieved but for such law, regulation, interpretation, directive or request).
(c) Each Lender shall notify the Borrower of any event occurring after the date hereof entitling such Lender to compensation under paragraph (a) or (b) of this Section 5.01 as promptly as practicable, but in any event within 45 days, after such Lender obtains actual knowledge thereof; provided that (i) if any Lender fails to give such notice within 45 days after it obtains actual knowledge of such an event, such Lender shall, with respect to compensation payable pursuant to this Section 5.01 in respect of any costs resulting from such event, only be entitled to payment under this Section 5.01 for costs incurred from and after the date 45 days prior to the date that such Lender does give such notice and (ii) each Lender will designate a different Applicable Lending Office for the Loans of such Lender affected by such event if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the sole opinion of such Lender, be disadvantageous to such Lender, except that such Lender shall have no obligation to designate an Applicable Lending Office located in the United States of America. Each Lender will furnish to the Borrower a certificate setting forth the basis and amount of each request by such Lender for compensation under paragraph (a) or (b) of this Section 5.01. Determinations and allocations by any Lender for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to paragraph (a) of this Section 5.01, or of the effect of capital maintained pursuant to paragraph (b) of this Section 5.01, on its costs or rate of return of maintaining Loans or its obligation to make Loans, or on amounts receivable by it in respect of Loans, and of the amounts required to compensate such Lender under this Section 5.01, shall be conclusive, provided that such determinations and allocations are made on a reasonable basis.
Appears in 1 contract
Sources: Credit Agreement (Premier Parks Inc)
Additional Costs. 1) The Company shall pay directly Borrower hereby irrevocably agrees to reimburse and indemnify each Funding Party Bank from time to time such amounts as such Funding Party may determine to be necessary to compensate such Funding Party for any all increased costs actually and fees incurred by such Funding Party that Bank in connection with this Agreement subsequent to the date of the Initial Advance of funds to Borrower under this Agreement and relating to or arising from (x) the offering of rates of interest based upon the One-Month LIBOR Rate to the extent such Funding Party determines are attributable to its making costs result from a Change or maintaining (y) a change in government regulation. Without limiting the generality of the foregoing, if (any Eurodollar Advances or its obligation to make of the following being a “Change”): (i) any Eurodollar Advances under the Operative Documentslaw, rule, regulation, guideline, or directive (in each case whether or not having the force of law) is passed, enacted, promulgated, ordered, issued or adopted after the date of the Initial Advance of funds to Borrower under this Agreement, (ii) there is any reduction change after the date of the Initial Advance of funds to Borrower under this Agreement in any amount receivable by such Funding Party under the Operative Documents in respect of any of such Advances law, rule, regulation, guideline, or such obligation directive (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:
(A) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party under the Operative Documents in respect of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by case whether or not having the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(B) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case force of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves law and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (including, without limitation, any request, rule, guideline or directive (A) in connection with the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act (as amended, the “▇▇▇▇-▇▇▇▇▇ Act”) or (B) enacted, promulgated, adopted, issued or implemented by Bank of such Advances International Settlements, the Basel Committee on Banking Supervision (or any deposits referred to successor or similar authority), or the United States or foreign financial regulatory authorities), or in the definition interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation, application or administration of "Eurodollar any of the foregoing, or (iii) such Bank complies with any request or directive made after the date of the Initial Advance of funds to Borrower under this Agreement regarding capital adequacy (whether or not having the force of law) from any such authority, central bank or comparable agency, and to the extent such Change shall:
(a) increase the cost to a Bank, by an amount which such Bank reasonably deems to be material, of making, converting into, continuing or maintaining any portion of any advance subject to the Interest Rate") , or reduce any commitment of such Funding Party (includingamount receivable hereunder in respect thereof, without limitation, the Commitments of such Funding Party hereunder); or
(Cb) imposes any other condition affecting the Operative Documents (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting have the effect of reducing the other provisions rate of this SECTION 7.5(B)return on a Bank’s capital as a consequence of its obligations hereunder, with respect to any Loan, to a level below that which such Bank could have achieved but for such Change by an amount reasonably deemed by such Bank to be material,
(c) then, in any and each such case, after submission by such Bank to Borrower of a written request therefor, Borrower shall pay such Bank any additional amounts necessary to compensate such Bank for such increased cost or reduction to the event that, by reason extent such costs or reduction is a result of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level change. A Bank’s reasonable determination of the amount of a category such reimbursement shall be conclusive in the absence of deposits or other liabilities manifest error. Notwithstanding anything to the contrary contained herein, for all purposes of such Funding Party that includes deposits by reference to which this Agreement, all requests, rules, guidelines and directives (I) in connection with the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances ▇▇▇▇-▇▇▇▇▇ Act or (iiII) becomes subject to restrictions enacted, promulgated, adopted, issued or implemented by Bank of International Settlements, the Basel Committee on the amount of such a category of liabilities Banking Supervision (or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agentany successor or similar authority), or the obligation United States or foreign financial regulatory authorities shall, in each case, be deemed to constitute a Change whether or not such request, rule, guideline or directive has the force of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3) Without limiting the effect law and regardless of the foregoing provisions of this SECTION 7.5(B) (but without duplication)date on which such request, the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate suchrule, guideline or directive was enacted, promulgated, adopted, issued or implemented.
Appears in 1 contract
Sources: Syndicated Term Loan Agreement (Strategic Storage Trust VI, Inc.)
Additional Costs. 1) The Company shall pay directly Borrower hereby irrevocably agrees to each Funding Party reimburse and indemnify Lender from time to time such amounts as such Funding Party may determine to be necessary to compensate such Funding Party for any all increased costs actually and fees incurred by such Funding Party that such Funding Party determines are attributable Lender in connection with this Agreement subsequent to its making the Effective Date and relating to or maintaining arising from (x) the offering of rates of interest based upon the LIBOR Rate or (y) a change in government regulation. Without limiting the generality of the foregoing, if (any Eurodollar Advances or its obligation to make of the following being a “Change”): (i) any Eurodollar Advances under the Operative Documentslaw, rule, regulation, guideline, or directive (in each case whether or not having the force of law) is passed, enacted, promulgated, ordered, issued or adopted after the Effective Date, (ii) there is any reduction change after the Effective Date in any amount receivable by such Funding Party under the Operative Documents in respect of any of such Advances law, rule, regulation, guideline, or such obligation directive (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:
(A) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party under the Operative Documents in respect of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by case whether or not having the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(B) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case force of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves law and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (including, without limitation, any request, rule, guideline or directive (A) in connection with the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act (as amended, the “▇▇▇▇-▇▇▇▇▇ Act”) or (B) enacted, promulgated, adopted, issued or implemented by the Bank of such Advances International Settlements, the Basel Committee on Banking Supervision (or any deposits referred to successor or similar authority), or the United States or foreign financial regulatory authorities), or in the definition interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation, application or administration of "Eurodollar any of the foregoing, or (iii) Lender complies with any request or directive made after the Effective Date regarding capital adequacy (whether or not having the force of law) from any such authority, central bank or comparable agency, and such Change shall:
(i) increase the cost to Lender, by an amount which Lender deems to be material, of making, converting into, continuing or maintaining any portion of any advance subject to the LIBOR Rate") , or reduce any commitment of such Funding Party (includingamount receivable hereunder in respect thereof, without limitation, the Commitments of such Funding Party hereunder); or
(Cii) imposes any other condition affecting the Operative Documents (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting have the effect of reducing the other provisions rate of this SECTION 7.5(B)return on Lender’s capital as a consequence of its obligations hereunder, with respect to any LIBOR Rate Loan or Prime Rate Loan, to a level below that which Lender could have achieved but for such Change by an amount deemed by Lender to be material,then, in the event thatany and each such case, after submission by reason Lender to Borrower of a written request therefor, Borrower shall pay Lender any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on additional amounts necessary to compensate Lender for such increased cost or measured by the excess above a specified level reduction. Lender’s reasonable determination of the amount of a category such reimbursement shall be conclusive in the absence of deposits or other liabilities manifest error. Notwithstanding anything to the contrary contained herein, for all purposes of such Funding Party that includes deposits by reference to which this Agreement and the interest rate on Eurodollar Advances is determined as provided Note, all requests, rules, guidelines and directives (I) in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances connection with the ▇▇▇▇-▇▇▇▇▇ Act or (iiII) becomes subject to restrictions enacted, promulgated, adopted, issued or implemented by the Bank of International Settlements, the Basel Committee on the amount of such a category of liabilities Banking Supervision (or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agentany successor or similar authority), or the obligation United States or foreign financial regulatory authorities shall, in each case, be deemed to constitute a Change whether or not such request, rule, guideline or directive has the force of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3) Without limiting the effect law and regardless of the foregoing provisions of this SECTION 7.5(B) (but without duplication)date on which such request, the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate suchrule, guideline or directive was enacted, promulgated, adopted, issued or implemented.
Appears in 1 contract
Sources: Credit Agreement (HCI Group, Inc.)
Additional Costs. 1(a) The Company shall pay directly to each Funding Party from time to time such amounts as such Funding Party may determine to be necessary to compensate such Funding Party for any costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making or maintaining of any Eurodollar Advances or its obligation to make any Eurodollar Advances under If the Operative Documentsadoption of, or any reduction change in, in each case after the Closing Date, any amount receivable Requirement of Law or in the interpretation or application thereof or compliance by such Funding Party under any Lender with any request or directive (whether or not having the Operative Documents in respect force of any of such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting law) from any Regulatory Change that:central bank or other Governmental Authority or the NAIC made subsequent to the Closing Date (other than such adoptions or changes as may relate to the certain Lenders' indirect ownership of the Companies):
(Ai) shall subject any Funding Party (Lender or its Applicable Lending Office for any of such Advances) L/C Lender to any taxtax of any kind whatsoever with respect to this Agreement, duty any Note, any Letter of Credit or other charge in respect of such Funded Amounts any Lender's participation therein, any L/C Document or changes any Loan made by it or change the basis of taxation of any amounts payable payments to such Funding Party under the Operative Documents Lender in respect of thereof by any of such Funded Amounts Governmental Authority (excluding (A) franchise except for taxes imposed on it covered by or (B) expressly excluded from coverage by, and expressly subject to, Section 5.06, changes in the rate of tax on the overall net income or net profits of such Funding Party Lender or of such its Applicable Lending Office, or any affiliate thereof or franchise taxes or similar taxes imposed with respect to or in lieu of its net income or net profits by any Governmental Authority);
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement (including any Reserve Requirement) against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender or L/C Lender which is not otherwise included in the determination of the LIBO Rate hereunder; or
(iii) shall impose on such Lender or L/C Lender any other condition (excluding taxes); and the result of any of the foregoing is to increase the cost to such Lender or L/C Lender, by an amount which such Lender or L/C Lender deems to be material, of making, converting into, continuing or maintaining LIBOR Loans or issuing or participating in Letters of Credit or to reduce any amount receivable hereunder in respect thereof then, in any such case, Borrower shall, within 10 days of written demand therefor, pay such Lender or L/C Lender any additional amounts necessary to compensate such Lender or L/C Lender on a net after-tax basis (taking into account any additional tax costs or tax benefits) for such increased cost or reduced amount receivable. If any Lender or L/C Lender becomes entitled to claim any additional amounts pursuant to this subsection, it shall promptly notify Borrower, through Collateral Agent, of the event by reason of which it has become so entitled. A certificate as to any additional amounts setting forth the calculation of such additional amounts pursuant to this Section 5.01 submitted by such Lender or L/C Lender, through Collateral Agent, to Borrower shall be conclusive in the absence of clearly demonstrable error. Without limiting the survival of any other covenant hereunder, this Section 5.01 shall survive the termination of this Agreement and the payment of the Notes and all other Obligations payable hereunder.
(b) In the event that any Lender or L/C Lender shall have determined that the adoption after the Closing Date of any law, rule, regulation or guideline regarding capital adequacy (or any change after the Closing Date therein or in the interpretation or application thereof) or compliance by any Lender or L/C Lender or any corporation controlling such Lender or L/C Lender with any request or directive regarding capital adequacy (whether or not having the force of law) from any central bank or other Governmental Authority or the NAIC, in each case, by made subsequent to the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(B) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (including, without limitation, any of such Advances or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party (Closing Date including, without limitation, the Commitments issuance after the Closing Date of any final rule, regulation or guideline, does or shall have the effect of reducing the rate of return on such Funding Party hereunder); or
Lender's or L/C Lender's or such corporation's capital as a consequence of its obligations hereunder or under any Letter of Credit to a level below that which such Lender or L/C Lender or such corporation could have achieved but for such adoption, change or compliance (Ctaking into consideration such Lender's or L/C Lender's or such corporation's policies with respect to capital adequacy) imposes any other condition affecting the Operative Documents (by an amount deemed by such Lender or any of L/C Lender to be material, then from time to time, after submission by such extensions of credit Lender or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice L/C Lender to such Funding Party Borrower (with a copy to Collateral Agent) of a written request therefor, Borrower shall promptly pay to such Lender or L/C Lender such additional amount or amounts as will compensate such Lender or L/C Lender for such reduction.
(c) Failure or delay on the Administrative Agent), suspend part of any Lender or the obligation L/C Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Funding Party thereafter Lender's or the L/C Lender's right to make demand such compensation; provided that the Borrower shall not be required to compensate a Lender or continue Eurodollar Advancesthe L/C Lender pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or the L/C Lender, or to convert Base Rate Advances into Eurodollar Advancesas the case may be, until notifies the Regulatory Change Borrower of the change in law giving rise to such request ceases increased costs or reductions and of such Lender's or the L/C Lender's intention to be claim compensation therefor; provided, further, that, if the change in effect (in which case law giving rise to such increased costs or reductions is retroactive, then the provisions of SECTION 7.5(E) hereof 180-day period referred to above shall be applicable), PROVIDED that such suspension shall not affect extended to include the right period of such Funding Party to receive the compensation so requestedretroactive effect thereof.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate such
Appears in 1 contract
Additional Costs. 1(a) The Company Co-Borrowers shall pay directly to each Funding Party the Bank from time to time on demand such amounts as such Funding Party the Bank may determine to be necessary to compensate such Funding Party it for any costs actually incurred by such Funding Party that such Funding Party which the Bank determines are attributable to its making or maintaining of any Eurodollar Advances Loans under this Agreement or the Note or its obligation to make any Eurodollar Advances under the Operative Documentssuch Loans, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change that:
which: (Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party the Bank under this Agreement or the Operative Documents Note in respect of any of such Funded Amounts Loans (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party the Bank or of its Lending Office for any of such Applicable Lending Office, in each case, Loans by the jurisdiction in which such Funding Party the Bank has its principal office Principal Office or such Applicable Lending Office); or
or (Bii) imposes or modifies any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit credit, or commitments therefor, or other assets of, or any deposits with or other liabilities of, such Funding Party (including, without limitation, any of such Advances or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder); or
(C) imposes any other condition affecting the Operative Documents (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2b) Without limiting the effect of the other foregoing provisions of this SECTION 7.5(B)Section 5.01, in the event that, by reason of any Regulatory Change, any Funding Party the Bank either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that the Bank which includes deposits by reference to which the interest rate on Eurodollar Advances Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that the Bank which includes Eurodollar Advances Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party the Bank so elects by notice to the Company (with a copy to the Administrative Agent)Co-Borrowers, the obligation of such Funding Party the Bank to make or continue, or to convert Base Rate Advances into, Eurodollar Advances Loans of such type hereunder shall be suspended until the date such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof Section 5.04 shall be applicable).
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company Co-Borrowers shall pay directly to each Funding Party the Bank from time to time on request such amounts as such Funding Party the Bank may determine to be necessary to compensate suchthe Bank for any costs which it determines are attributable to the maintenance by it or any of its affiliates pursuant to any law or regulation of any jurisdiction or any interpretation, directive or request (whether or not having the force of law and whether in effect on the date of this Agreement or thereafter) of any court or governmental or monetary authority of capital in respect of its Loans hereunder (such compensation to include, without limitation, an amount equal to any reduction in return on assets or equity of the Bank to a level below that which it could have achieved but for such law, regulation, interpretation, directive or request). The Bank will notify the Co-Borrowers if it is entitled to compensation pursuant to this Section 5.01(c) as promptly as practicable after it determines to request such compensation.
Appears in 1 contract
Sources: Credit Agreement (Olsten Corp)
Additional Costs. 1(i) The Company shall pay directly to each Funding Party from time to time such amounts as such Funding Party may determine to be necessary to compensate such Funding Party for any costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making or maintaining of any Eurodollar Advances or its obligation to make any Eurodollar Advances under the Operative Documents, or any reduction in any amount receivable by such Funding Party under the Operative Documents in respect of any of such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:
(A) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation Without duplication of any amounts payable to such Funding Party under described in Section 3.03(c), 4.04(a) or 4.04(b)(ii), if after the Operative Documents date hereof there shall have occurred any change in respect any law or regulation or in the interpretation thereof by any court or Governmental Authority charged with the administration thereof or the enactment of any of such Funded Amounts (excluding law or regulation shall either (A) franchise taxes imposed on it impose, modify or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(B) imposes or modifies deem applicable any reserve, special deposit or similar requirements requirement with respect to any Bank’s Commitment or its Revolving Eurodollar Loans or (subject to Section 2.07(c)) Competitive Eurodollar Loans, (B) subject such Bank to any duty or other thancharge with respect to any of its Revolving Eurodollar Loans or (subject to Section 2.07(c)) Competitive Eurodollar Loans or its obligations to make Revolving Eurodollar Loans or (C) impose on such Bank any other condition regarding this Agreement, its Commitment to make Revolving Eurodollar Loans or its Revolving Eurodollar Loans or (subject to Section 2.07(c)) Competitive Eurodollar Loans and the result of any event referred to in clause (A), (B) or (C) shall be to increase the cost (“Additional Costs”) to such Bank of maintaining its Commitment to make Revolving Eurodollar Loans or making or maintaining its Revolving Eurodollar Loans or (subject to Section 2.07(c)) Competitive Eurodollar Loans or shall reduce the amounts received or receivable hereunder (which Additional Costs shall be calculated by such Bank in good faith in accordance with each Bank’s internal policies, including any reasonable averaging and attribution methods) by an amount which such Bank in good faith shall determine to be material, then, subject to Sections 4.04(c) and (d), the relevant Borrower shall pay to such Bank an amount equal to such Additional Costs.
(ii) Without duplication of any amounts described in Section 3.03(c), 4.04(a) or 4.04(b)(i), if after the date hereof the adoption of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change in the case interpretation or administration thereof by any Governmental Authority, central bank or comparable agency or instrumentality charged with the interpretation or administration thereof, or compliance by such Bank with any request or directive regarding capital adequacy (whether or not having the force of law) of any Funding Party such Governmental Authority, central bank or comparable agency or instrumentality, has or would have the effect of reducing the rate of return on capital for such Bank or any period corporation controlling such Bank as a consequence of its obligations under this Agreement to a level below that which such Bank shall determine in good faith that reasonably could have been achieved but for such adoption, change or compliance (taking into consideration such Bank’s or such corporation’s policies with respect to capital adequacy), then from time to time, subject to Sections 4.04(c) and (d), the relevant Borrower shall pay to such Bank such additional amount or amounts as will compensate such Bank for such reduction. Notwithstanding anything herein to the contrary, this Section 4.04(b) shall not apply to (i) increased costs or reduction in amounts received or receivable hereunder resulting from any Tax or Excluded Tax, as to which the Company is required to pay any amount under PARAGRAPH 5Section 4.04(a) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (including, without limitation, any of such Advances or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder); or
(C) imposes any other condition affecting the Operative Documents (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances govern or (ii) becomes subject changes in the basis of taxation of net income by the United States or any other jurisdiction which are applicable to restrictions on the amount of such a category of liabilities any Bank or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable)its lending office.
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate such
Appears in 1 contract
Sources: Revolving Credit and Competitive Advance Facility Agreement (Avon Products Inc)
Additional Costs. 1(a) The Company shall pay directly to the Agent for the account of each Funding Party Bank from time to time such amounts as such Funding Party Bank may reasonably determine to be necessary to compensate such Funding Party it for any costs actually incurred by which such Funding Party that such Funding Party Bank determines are attributable to its making or maintaining of any Eurodollar Advances of its Loans or its obligation to make any Eurodollar Advances under the Operative Documents, such Loans hereunder or any reduction in any amount receivable by such Funding Party Bank from the Company hereunder or under the Operative Documents Notes in respect of any of such Advances its Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"“Additional Costs”), resulting from any Regulatory Change that:
which: (Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to the Agent or such Funding Party Bank by the Company under the Operative Documents in respect of this Agreement or any of such Funded Amounts Note (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Bank or of such its Applicable Lending Office, in each case, Office by the jurisdiction in which such Funding Party Bank has its principal office or such Applicable Lending Office); or
or (Bii) imposes or modifies any reserve, special deposit deposit, minimum capital, capital ratio or similar requirements (other thanrequirements, in or increases the case rate of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) belowsuch requirements, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Bank (including, without limitation, including any of such Advances Bank’s Loans or any deposits referred to in the definition of "Eurodollar Rate") “LIBOR” in Section 1.01 hereof), or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder)or the Notes; or
or (Ciii) imposes any other condition affecting this Agreement or the Operative Documents Notes (or any of such extensions of credit or liabilities) or its the Commitments. If any Funding Party requests compensation from The relevant Bank will notify the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent) of any event occurring after the date of this Agreement which will entitle such Bank to compensation pursuant to this Section 5.01 (a) as promptly as practicable after it obtains knowledge thereof and determines, in the light of its then prevailing policies, to request such compensation. Notwithstanding the foregoing provisions of this Section 5.01(a), suspend the obligation in no event shall any Bank requesting payment of any Additional Costs under this Section 5.01(a) be entitled to payment of such Funding Party thereafter Additional Costs to make or continue Eurodollar Advancesthe extent that such Additional Costs arose with respect to any period prior to the date of the first such request. Further, each Bank will designate a different Applicable Lending Office for its Loans if such designation will avoid the need for, or to convert Base Rate Advances into Eurodollar Advancesreduce the amount of, until such compensation and will not, in the Regulatory Change giving rise opinion of such Bank, be disadvantageous to such Bank in any material respect. Each Bank will furnish the Company (with a copy to the Agent) with a certificate setting forth in reasonable detail the basis and amount of each request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicablefor compensation under this Section 5.01(a), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2(b) Without limiting the effect of the other provisions of this SECTION 7.5(BSection 5.01(a) hereof (but without duplication), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) Bank becomes subject to restrictions on the amount of such a any category of liabilities or assets that (relating to any Loan held by it may holdor its funding), then, if such Funding Party Bank so elects by notice to the Company (with a copy to the Administrative Agent), the obligation following provisions shall apply:
(x) During the 30-day period following the date of any such Funding Party notice (the “Negotiation Period”), such Bank and the Company will negotiate in good faith (through the Agent) to make or continueagree upon a substitute basis (the “Substitute Basis”) for determining the rate of interest to be applicable to the Loans held by such Bank (including, or if appropriate, alternative periods for such determinations). If so agreed, the Substitute Basis (plus the Applicable Margin) shall thereafter be the rate at which such Loans bear interest pursuant to convert Base Rate Advances into, Eurodollar Advances hereunder Section 3.02 hereof (subject to Section 3.04) and shall be suspended until such Regulatory Change ceases to be in retroactive to, and take effect (in which case from, the provisions of SECTION 7.5(E) hereof shall be applicable).
3) Without limiting the effect beginning of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to then current Interest Period for each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate suchLoan.
Appears in 1 contract
Sources: Loan Agreement (Coca Cola Bottling Co Consolidated /De/)
Additional Costs. 1(a) The Company Each Borrower shall pay directly to each Funding Party Lender from time to time such amounts as such Funding Party Lender may determine to be necessary to compensate such Funding Party Lender for any costs actually incurred by such Funding Party that such Funding Party Lender determines are attributable to its making or maintaining of any Eurodollar Advances Fixed Rate Loans owing by such Borrower or its obligation to make to such Borrower any Eurodollar Advances under the Operative DocumentsFixed Rate Loans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"“Additional Costs”), resulting from any Regulatory Change (including without limitation, the introduction of, changeover to or operation of the Euro in a Participating Member State) that:
(Ai) shall subject any Funding Party Lender (or its Applicable Lending Office for any of such AdvancesLoans) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party under the Operative Documents in respect of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office)Taxes; or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of any Funding Party Lender for any period as to which the Company a Borrower is required to pay any amount under PARAGRAPH 5Section 5.01(d) belowhereof, the reserves and "against “Eurocurrency liabilities" ” under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, any of such Advances Loans or any deposits referred to in the definition of "Eurodollar “Fixed Base Rate") ” in Section 1.01 hereof), or any commitment of such Funding Party Lender (including, without limitation, the Commitments Commitment of such Funding Party Lender hereunder); or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or (if any) its Notes (or any of such extensions of credit or liabilities) or its CommitmentsCommitment. If any Funding Party Lender requests compensation from the Company a Borrower under this SECTION 7.5(BSection 5.01(a), the Company such Borrower may, by notice to such Funding Party Lender (with a copy to the Administrative Agent), suspend the obligation of such Funding Party Lender thereafter to make or continue Eurodollar Advances, or Eurocurrency Loans to convert Base Rate Advances into Eurodollar Advances, such Borrower until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable), PROVIDED provided that such suspension shall not affect the right of such Funding Party Lender to receive the compensation so requested.
2(b) Without limiting the effect of the other foregoing provisions of this SECTION 7.5(BSection 5.01 (but without duplication), if any Lender shall have determined that any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of any court or governmental or monetary authority, (i) following any Regulatory Change or (ii) implementing any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) hereafter issued by any government or governmental or supervisory authority implementing at the national level any change in the Basle Accord, has or would have the effect of reducing the rate of return on assets or equity of such Lender (or any Applicable Lending Office of such Lender or any bank holding company of which such Lender is a subsidiary) as a consequence of such Lender’s Commitment to make or maintain Loans to a Borrower or Loans made to such Borrower to a level below that which such Lender (or such Applicable Lending Office or such bank holding company) could have achieved but for such law, regulation, interpretation, directive or request, then such Borrower shall pay directly to each Lender from time to time on request such amounts as such Lender may determine to be necessary to compensate such Lender (or, without duplication, such Applicable Lending Office or such bank holding company) for such reduction.
(c) Each Lender shall notify the relevant Borrower of any event occurring after the date hereof entitling such Lender to compensation from such Borrower under paragraph (a) or (b) of this Section 5.01 as promptly as practicable, but in any event within 45 days, after such Lender obtains actual knowledge thereof; provided that (i) if any Lender fails to give such notice within 45 days after it obtains actual knowledge of such an event, such Lender shall, with respect to compensation payable by such Borrower pursuant to this Section 5.01 in respect of any costs resulting from such event, only be entitled to payment under this Section 5.01 for costs incurred from and after the date 45 days prior to the date that such Lender does give such notice and (ii) each Lender will designate a different Applicable Lending Office for the Loans of such Lender affected by such event if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the event thatsole opinion of such Lender, be disadvantageous to such Lender, except that such Lender shall have no obligation to designate an Applicable Lending Office located in the United States of America. Each Lender will furnish to the relevant Borrower a certificate setting forth the basis and amount of each request by such Lender for compensation under paragraph (a) or (b) of this Section 5.01. Determinations and allocations by any Lender for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to paragraph (a) of this Section 5.01, or of the effect of capital maintained pursuant to paragraph (b) of this Section 5.01, on its costs or rate of return of maintaining Loans or its obligation to make Loans, or on amounts receivable by it in respect of Loans, and of the amounts required to compensate such Lender under this Section 5.01, shall be conclusive, provided that such determinations and allocations are made on a reasonable basis.
(d) Without limiting the effect of the foregoing, each Borrower shall pay to each Lender on the last day of the Interest Period therefor so long as such Lender is maintaining reserves against “Eurocurrency liabilities” under Regulation D (or, unless the provisions of paragraph (b) above are applicable, so long as such Lender is, by reason of any Regulatory Change, maintaining reserves against any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a other category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances Fixed Rate Loans is determined as provided in this Master Agreement or a against any category of extensions of credit or other assets of such Funding Party Lender that includes Eurodollar Advances or any Fixed Rate Loans) an additional amount (determined by such Lender and notified to such Borrower through the Administrative Agent) equal to the product of the following for each Fixed Rate Loan to such Borrower for each day during such Interest Period:
(i) the principal amount of such Fixed Rate Loan outstanding on such day; and
(ii) becomes subject to restrictions the remainder of (x) a fraction the numerator of which is the rate (expressed as a decimal) at which interest accrues on such Fixed Rate Loan for such Interest Period as provided in this Agreement (less the amount Applicable Margin) and the denominator of which is one minus the effective rate (expressed as a decimal) at which such a category of liabilities or assets that it may holdReserve Requirements are imposed on such Lender on such day minus (y) such numerator; and
(iii) 1/360. Notwithstanding the foregoing, then, if such Funding Party so elects by notice this Section 5.01 does not apply to the Company (with a copy to extent that any Additional Costs are compensated for by Section 5.06 or would have been so compensated but for the Administrative Agent), the obligation application of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicableany exclusion under Section 5.06(i).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate such
Appears in 1 contract
Additional Costs. 1(a) The Company Borrower shall pay directly to each Funding Party Bank from time to time on demand such amounts as such Funding Party Bank may reasonably determine to be necessary to compensate such Funding Party it for any costs actually incurred by which such Funding Party that such Funding Party Bank determines are attributable to its making or maintaining of any Eurodollar Advances Loans under this Agreement or its Note or its obligation to make any Eurodollar Advances under the Operative Documentssuch Loans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change that:
(A) shall subject Change, or any Funding Party (or its Applicable Lending Office Reserve Requirement for any of such AdvancesLoans which: (i) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Bank under the Operative Documents this Agreement or its Note in respect of any of such Funded Amounts Loans (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Bank or of its Lending Office for any of such Applicable Lending Office, in each case, Loans by the jurisdiction in which such Funding Party Bank has its principal office or such Applicable Lending Office); or
or (Bii) imposes or modifies any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Bank (including, without limitation, including any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Base Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder" in Section 1.01); or
or (Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Note (or any of such extensions of credit or liabilities). Each Bank will notify the Borrower of any event occurring after the date of this Agreement which will entitle such Bank to compensation pursuant to this Section 3.01(a) as promptly as practicable after it obtains knowledge thereof and determines to request such compensation. The amount payable to any such Bank shall be computed from the date of the occurrence giving rise to Additional Cost, or its Commitmentsthe date that is 120 days prior to the date of demand by such Bank, whichever is later. If any Funding Party Bank requests compensation from the Company Borrower under this SECTION 7.5(Bsection 3.01(a), or under section 3.01(c), the Company Borrower may, by notice to such Funding Party Bank (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter Bank to make or continue Eurodollar Advances, or maintain Loans of the type with respect to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to which such request ceases to be in effect compensation is requested (in which case the provisions of SECTION 7.5(E) hereof section 3.04 shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2(b) Without limiting the effect of the other foregoing provisions of this SECTION 7.5(B)Section 3.01, in the event that, by reason of any Regulatory Change, any Funding Party Bank either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Bank which includes deposits by reference to which the interest rate on Eurodollar Advances Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that Bank which includes Eurodollar Advances Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party Bank so elects by notice to the Company Borrower (with a copy to the Administrative Agent), the obligation of such Funding Party Bank to make or continue, or to convert Base Rate Advances into, Eurodollar Advances Loans of such type hereunder shall be suspended until the date such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof Section 3.04 shall be applicable).
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 3.01 (but without duplication), the Company Borrower shall pay directly to each Funding Party Bank from time to time on request such amounts as such Funding Party Bank may reasonably determine to be necessary to compensate suchsuch Bank for any costs which it determines are attributable to the maintenance of capital by it or any of its Affiliates pursuant to any future law or regulation of any jurisdiction or any interpretation, directive or request (whether or not having the force of law and whether in effect on the date of this Agreement or thereafter) of any court or governmental or monetary authority in respect of its Loan hereunder or its obligation to make its Loan hereunder (such compensation to include, without limitation, an amount equal to any reduction in return on assets or equity of such Bank to a level below that which it could have achieved but for such law, regulation, interpretation, directive or request). Each Bank will notify the Borrower if it is entitled to compensation pursuant to this Section 3.01(c) as promptly as practicable after it determines to request such compensation. The amount payable to any Bank shall be computed from the date of the occurrence entitling such Bank to compensation, or the date that is one hundred twenty (120) days prior to the date of demand by such Bank, whichever is later.
(d) Determinations and allocations by a Bank for purposes of this Section 3.01 of the effect of any Regulatory Change pursuant to subsections (a) or (b), or of the effect of capital maintained pursuant to subsection (c), on its costs of making or maintaining Loans or its obligation to make Loans, or on amounts receivable by, or the rate of return to, it in respect of Loans or such obligation, and of the additional amounts required to compensate such Bank under this Section 3.01, shall be conclusive, provided that such determinations and allocations are made on a reasonable basis.
Appears in 1 contract
Additional Costs. 1(a) The Company Each Borrower shall pay directly to each Funding Party Lender from time to time such amounts as such Funding Party Lender may determine to be necessary to compensate such Funding Party Lender for any costs actually incurred by such Funding Party that such Funding Party Lender determines are attributable to its making or maintaining of any Eurodollar Advances Fixed Rate Loans owing by such Borrower or its obligation to make to such Borrower any Eurodollar Advances under the Operative DocumentsFixed Rate Loans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"“Additional Costs”), resulting from any Regulatory Change (including without limitation, the introduction of, changeover to or operation of the Euro in a Participating Member State) that:
(Ai) shall subject any Funding Party Lender (or its Applicable Lending Office for any of such AdvancesLoans) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party under the Operative Documents in respect of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office)Taxes; or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of any Funding Party Lender for any period as to which the Company a Borrower is required to pay any amount under PARAGRAPH 5Section 5.01(d) belowhereof, the reserves and "against “Eurocurrency liabilities" ” under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, any of such Advances Loans or any deposits referred to in the definition of "Eurodollar “Fixed Base Rate") ” in Section 1.01 hereof), or any commitment of such Funding Party Lender (including, without limitation, the Commitments Commitment(s) of such Funding Party Lender hereunder); or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or (if any) its Notes (or any of such extensions of credit or liabilities) or its CommitmentsCommitment(s). If any Funding Party Lender requests compensation from the Company a Borrower under this SECTION 7.5(BSection 5.01(a), the Company such Borrower may, by notice to such Funding Party Lender (with a copy to the Administrative Agent), suspend the obligation of such Funding Party Lender thereafter to make or continue Eurodollar Advances, or Eurocurrency Loans to convert Base Rate Advances into Eurodollar Advances, such Borrower until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable), PROVIDED provided that such suspension shall not affect the right of such Funding Party Lender to receive the compensation so requested.
2(b) Without limiting the effect of the other foregoing provisions of this SECTION 7.5(BSection 5.01 (but without duplication), if any Lender shall have determined that any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of any court or governmental or monetary authority, (i) following any Regulatory Change or (ii) implementing any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) hereafter issued by any government or governmental or supervisory authority implementing at the national level any change in the Basle Accord, has or would have the effect of reducing the rate of return on assets or equity of such Lender (or any Applicable Lending Office of such Lender or any bank holding company of which such Lender is a subsidiary) as a consequence of such Lender’s Commitment to make or maintain Loans to a Borrower or Loans made to such Borrower to a level below that which such Lender (or any Applicable Lending Office or such bank holding company) could have achieved but for such law, regulation, interpretation, directive or request, then such Borrower shall pay directly to each Lender from time to time on request such amounts as such Lender may determine to be necessary to compensate such Lender (or, without duplication, such bank holding company) for such reduction.
(c) Each Lender shall notify the relevant Borrower of any event occurring after the date hereof entitling such Lender to compensation from such Borrower under paragraph (a) or (b) of this Section 5.01 as promptly as practicable, but in any event within 45 days, after such Lender obtains actual knowledge thereof; provided that (i) if any Lender fails to give such notice within 45 days after it obtains actual knowledge of such an event, such Lender shall, with respect to compensation payable by such Borrower pursuant to this Section 5.01 in respect of any costs resulting from such event, only be entitled to payment under this Section 5.01 for costs incurred from and after the date 45 days prior to the date that such Lender does give such notice and (ii) each Lender will designate a different Applicable Lending Office for the Loans of such Lender affected by such event if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the event thatsole opinion of such Lender, be disadvantageous to such Lender, except that such Lender shall have no obligation to designate an Applicable Lending Office located in the United States of America. Each Lender will furnish to the relevant Borrower a certificate setting forth the basis and amount of each request by such Lender for compensation under paragraph (a) or (b) of this Section 5.01. Determinations and allocations by any Lender for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to paragraph (a) of this Section 5.01, or of the effect of capital maintained pursuant to paragraph (b) of this Section 5.01, on its costs or rate of return of maintaining Loans or its obligation to make Loans, or on amounts receivable by it in respect of Loans, and of the amounts required to compensate such Lender under this Section 5.01, shall be conclusive, provided that such determinations and allocations are made on a reasonable basis.
(d) Without limiting the effect of the foregoing, each Borrower shall pay to each Lender on the last day of the Interest Period therefor so long as such Lender is maintaining reserves against “Eurocurrency liabilities” under Regulation D (or, unless the provisions of paragraph (b) above are applicable, so long as such Lender is, by reason of any Regulatory Change, maintaining reserves against any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a other category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances Fixed Rate Loans is determined as provided in this Master Agreement or a against any category of extensions of credit or other assets of such Funding Party Lender that includes Eurodollar Advances or any Fixed Rate Loans) an additional amount (determined by such Lender and notified to such Borrower through the Administrative Agent) equal to the product of the following for each Fixed Rate Loan to such Borrower for each day during such Interest Period:
(i) the principal amount of such Fixed Rate Loan outstanding on such day; and
(ii) becomes subject to restrictions the remainder of (x) a fraction the numerator of which is the rate (expressed as a decimal) at which interest accrues on such Fixed Rate Loan for such Interest Period as provided in this Agreement (less the amount Applicable Margin) and the denominator of which is one minus the effective rate (expressed as a decimal) at which such a category of liabilities or assets that it may holdReserve Requirements are imposed on such Lender on such day minus (y) such numerator; and
(iii) 1/360. Notwithstanding the foregoing, then, if such Funding Party so elects by notice this Section 5.01 does not apply to the Company (with a copy to extent that any Additional Costs are compensated for by Section 5.06 or would have been so compensated but for the Administrative Agent), the obligation application of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicableany exclusion under Section 5.06(i).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate such
Appears in 1 contract
Additional Costs. 1(a) The Company shall pay directly to each Funding Party Bank from time to time such amounts as such Funding Party Bank may reasonably determine to be necessary to compensate such Funding Party Bank for any costs actually incurred by such Funding Party that such Funding Party Bank determines are attributable to its making or maintaining of any Eurodollar Advances Fixed Rate Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsFixed Rate Loans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change that:
(Ai) shall subject any Funding Party Bank (or its Applicable Lending Office lending office for any of such AdvancesLoans) to any tax, duty or other charge in respect of such Funded Amounts Loans or its Notes or changes the basis of taxation of any amounts payable to such Funding Party Bank under the Operative Documents this Agreement or its Notes in respect of any of such Funded Amounts Loans (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income or gross receipts of such Funding Party Bank or of such Applicable Lending Office, in each case, lending office by the jurisdiction in which such Funding Party Bank has its principal office or such Applicable Lending Officelending office); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of any Funding Party Bank for any period as to which the Company is required to pay any amount under PARAGRAPH 5paragraph (d) below, the reserves and against "Eurocurrency liabilities" under Regulation D therein referred to thereinto) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Bank (including, without limitation, any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Fixed Base Rate") " in Section 1.01 hereof), or any commitment of such Funding Party Bank (including, without limitation, the Commitments Commitment of such Funding Party Bank hereunder); or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Notes (or any of such extensions of credit or liabilities) or its CommitmentsCommitment. If any Funding Party Bank requests compensation from the Company under this SECTION 7.5(BSection 5.01(a), the Company may, by notice to such Funding Party Bank (with a copy to the Administrative Agent), suspend the obligation of such Funding Party Bank thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, Loans until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable), PROVIDED provided that such suspension shall not affect the right of such Funding Party Bank to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3b) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company shall pay directly to each Funding Party Bank from time to time on request such amounts as such Funding Party Bank may reasonably determine to be necessary to compensate suchsuch Bank (or, without duplication, the bank holding company of which such Bank is a subsidiary) for any costs that it determines are attributable to the maintenance by such Bank (or any lending office or such bank holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of any court or governmental or monetary authority (i) following any Regulatory Change or (ii) implementing any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) hereafter issued by any government or governmental or supervisory authority implementing at the national level the Basle Accord, of capital in respect of its Commitment or Loans (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Bank (or any lending office or such bank holding company) to a level below that which such Bank (or any lending office or such bank holding company) could have achieved but for such law, regulation, interpretation, directive or request).
(c) Each Bank shall notify the Company of any event occurring after the date hereof entitling such Bank to compensation under paragraph (a) or (b) of this Section 5.01 as promptly as practicable, but in any event within 60 days, after such Bank obtains actual knowledge thereof; provided that (i) if any Bank fails to give such notice within 60 days after it obtains actual knowledge of such an event, such Bank shall, with respect to compensation payable pursuant to this Section 5.01 in respect of any costs resulting from such event, only be entitled to payment under this Section 5.01 for costs incurred from and after the date 60 days prior to the date that such Bank does give such notice and (ii) each Bank will designate a different lending office for the Loans of such Bank affected by such event if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the sole opinion of such Bank, be disadvantageous to such Bank. Each Bank will furnish to the Company a certificate setting forth in reasonably specific detail the basis and amount of each request by such Bank for compensation under paragraph (a) or (b) of this Section 5.01. Determinations and allocations by any Bank for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to paragraph (a) of this Section 5.01, or of the effect of capital maintained pursuant to paragraph (b) of this Section 5.01, on its costs or rate of return of maintaining Loans or its obligation to make Loans, or on amounts receivable by it in respect of Loans, and of the amounts required to compensate such Bank under this Section 5.01, shall be conclusive, provided that such determinations and allocations are made on a reasonable basis.
(d) Without limiting the effect of the foregoing, the Company shall pay to each Bank on the last day of each Interest Period so long as such Bank is maintaining reserves against "Eurocurrency liabilities" under Regulation D (or, unless the provisions of paragraph (b) above are applicable, so long as such Bank is, by reason of any Regulatory Change, maintaining reserves against any other category of liabilities that includes deposits by reference to which the interest rate on Eurodollar Loans or LIBOR Market Loans is determined as provided in this Agreement or against any category of extensions of credit or other assets of such Bank that includes any Eurodollar Loans or LIBOR Market Loans) an additional amount (reasonably determined by such Bank and notified to the Company through the Administrative Agent) equal to the product of the following for each Eurodollar Loan or LIBOR Market Loan for each day during such Interest Period:
(i) the principal amount of such Eurodollar Loan or LIBOR Market Loan outstanding on such day; and Credit Agreement 42 - 38 -
(ii) the remainder of (x) a fraction the numerator of which is the rate (expressed as a decimal) at which interest accrues on such Eurodollar Loan or LIBOR Market Loan for such Interest Period as provided in this Agreement (less the Applicable Margin) and the denominator of which is one minus the effective rate (expressed as a decimal) at which such reserve requirements are imposed on such Bank on such day minus (y) such numerator; and
(iii) 1/360.
Appears in 1 contract
Additional Costs. 1) The Company Other than with respect to Taxes, which shall pay directly to each Funding Party be governed by §5.4.2, if any present or future applicable law, which expression, as used herein, includes statutes, rules and regulations thereunder and interpretations thereof by any competent court or by any governmental or other regulatory body or official charged with the administration or the interpretation thereof and requests, directives, instructions and notices at any time or from time to time such amounts as such Funding Party may determine hereafter made upon or otherwise issued to be necessary any Lender by any central bank or other fiscal, monetary or other authority (whether or not having the force of law), shall:
(a) impose or increase or render applicable (other than to compensate such Funding Party the extent specifically provided for elsewhere in this Credit Agreement) any costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making special deposit, reserve, assessment, liquidity, capital adequacy or maintaining other similar requirements (whether or not having the force of law) against assets held by, or deposits in or for the account of, or loans by, or letters of credit issued by, or commitments of an office of any Eurodollar Advances Lender, or
(b) impose on any Lender any other conditions or its obligation requirements with respect to make any Eurodollar Advances under this Credit Agreement, the Operative other Loan Documents, the Term Loans, such Lender’s Term Loan Commitment, or any reduction in class of loans or commitments of which any amount receivable by of the Term Loans or such Funding Party under Lender’s Term Loan Commitment forms a part, and the Operative Documents in respect result of any of such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change thatthe foregoing is:
(Ai) shall subject to increase the cost to any Funding Party (Lender of making, funding, issuing, renewing, extending or its Applicable Lending Office for maintaining any of the Term Loans or such AdvancesLender’s Term Loan Commitment, or
(ii) to any taxreduce the amount of principal, duty interest or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party under the Operative Documents in respect Lender hereunder on account of such Lender’s Term Loan Commitment or any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending OfficeTerm Loans, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(Biii) imposes to require such Lender to make any payment or modifies to forego any reserve, special deposit or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit interest or other assets ofsum payable hereunder, or any deposits with or other liabilities of, such Funding Party (including, without limitation, any of such Advances or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder); or
(C) imposes any other condition affecting the Operative Documents (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits which payment or foregone interest or other liabilities of such Funding Party that includes deposits sum is calculated by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the gross amount of any sum receivable or deemed received by such a category of liabilities or assets that it may holdLender from the Borrowers hereunder, then, if and in each such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent)case, the obligation of Borrowers will, upon demand made by such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party Lender at any time and from time to time on request and as often as the occasion therefor may arise, pay to such Lender such additional amounts as will be sufficient (taking into account any amounts described in subsections 5.4.1(a) or (b) hereof on such Funding Party may determine to be necessary additional amounts) to compensate suchsuch Lender for such additional cost, reduction, payment or foregone interest or other sum.
Appears in 1 contract
Sources: Credit Agreement (WorldSpace, Inc)
Additional Costs. 1(a) The Company shall pay directly to each Funding Party from time to time such amounts as such Funding Party may determine to be necessary to compensate such Funding Party for In the event that any costs actually incurred future law or regulation or guideline or interpretation thereof by such Funding Party that such Funding Party determines are attributable to its making any court or maintaining administrative or governmental authority charged with the administration thereof, or compliance by any Lender with any request or directive (whether or not having the force of law) of any Eurodollar Advances such authority or its obligation to make any Eurodollar Advances under the Operative Documents, or any reduction in any amount receivable by such Funding Party under the Operative Documents in respect of any of such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:
(Aincluding for the purposes of this Section 2.15, any law, rule, regulation or guidelines adopted at any time, whether or not such law, rule, regulation or guidelines was in effect on or prior to the Closing Date, pursuant to or arising out of the July 1988 Report of the Basle Committee on Bank Regulations and Supervisory Practices entitled "International Convergence of Capital Measurement and Capital Standard") shall subject any Funding Party (or its Applicable Lending Office for any of such Advancesi) to any tax, duty or other charge in respect of such Funded Amounts or changes change the basis of taxation of any amounts payable to such Funding Party Lender under this Agreement or the Operative Documents Notes in respect of any of such Funded Amounts Loans (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Lender for any such Loans by the United States or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party Lender has its principal office or such Applicable Lending Officeoffice); or
or (Bii) imposes impose or modifies modify any reserve, Federal Deposit Insurance Corporation premium or assessment, special deposit or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender; or (including, without limitation, any of such Advances or any deposits referred to in the definition of "Eurodollar Rate"iii) or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder); or
(C) imposes impose any other condition conditions affecting this Agreement or the Operative Documents Notes in respect of Loans (or any of such extensions of credit credit, assets, deposits or liabilities); and the result of any event referred to in clause (i), (ii) or (iii) above shall be to increase such Lender's costs of making or maintaining any Loans or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar AdvancesCommitment, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to reduce any amount receivable by such request ceases to be Lender hereunder in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason respect of any Regulatory Change, any Funding Party either Loans or its Commitment (i) incurs such increases in costs and reductions in amounts receivable are hereinafter referred to as "Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may holdCosts"), then, if upon demand made by such Funding Party so elects by notice to Lender the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company Borrower shall pay directly to each Funding Party such Lender from time to time on request as specified by such Lender, additional commitment fees or other amounts as such Funding Party may determine to which shall be necessary sufficient to compensate suchsuch Lender for such Additional Cost, together with interest on each such amount which is not paid when demanded by such Lender, payable at the Post-Default Rate.
(b) Determinations by any Lender for purposes of this Section 2.15 of its costs of making or maintaining the Loans or on amounts receivable by it in respect of the Loans, and of the additional amounts required to compensate such Lender in respect of any Additional Costs, shall be set forth in writing delivered by the Agent or the affected Lender to the Borrower showing the calculation thereof in reasonable detail and shall be conclusive, absent manifest error.
Appears in 1 contract
Sources: Warehouse Revolving Credit Facility Agreement (Marlin Business Services Inc)
Additional Costs. 1(i) The Company shall pay directly to the Administrative Agent for the account of each Funding Party Lender from time to time such amounts as such Funding Party Lender may determine to be necessary to compensate such Funding Party it for any costs actually incurred by such Funding Party that Lender which such Funding Party Lender determines are attributable to its making making, maintaining, converting or maintaining continuing of any Eurodollar Advances Loans hereunder to the Company or any other Borrower or its obligation to make any Eurodollar Advances under of such Loans hereunder to the Operative DocumentsCompany or any other Borrower, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"“Additional Costs”), in each case resulting from any Regulatory Change thatwhich:
(A) shall subject any Funding Party (subjects the Lender or Issuing Bank to Taxes on its loans, loan principal, letters of credit, commitments, or other obligations, or its Applicable Lending Office for any of such Advances) to any taxdeposits, duty reserves, other liabilities or capital attributable thereto (other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party under the Operative Documents in respect of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, than Indemnified Taxes covered by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending OfficeSection 5.08 and Excluded Taxes); or
(B) imposes imposes, modifies or modifies deems applicable any reserve, special deposit deposit, liquidity or similar requirements requirement (other thanincluding any compulsory loan requirement, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit insurance charge or other assessment) against assets of, or any deposits with or other liabilities for the account of, such Funding Party (including, without limitationor credit extended by, any of Lender (except any such Advances or any deposits referred to reserve requirement reflected in the definition of "Eurodollar Adjusted Term SOFR Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder)Issuing Bank; or
(C) imposes any other condition condition, cost or expense affecting the Operative Documents this Agreement (or any of such extensions of credit or liabilities). Each Lender (such term to include the Issuing Bank for purposes of this Section 6.01(a), solely in the case of and with respect to (i) above) will notify the Company through the Administrative Agent of any event occurring after the Original Closing Date which will entitle such Lender to compensation pursuant to this Section 6.01(a) (an “Additional Cost Event”) as promptly as practicable after it obtains knowledge thereof and determines to request such compensation, provided, that the Company shall not be obligated to compensate such Lender for any such Additional Costs incurred more than 180 days prior to the time the Lender first notifies the Company of such Additional Cost Event (or its Commitmentssuch longer period if such Additional Cost Event is given retroactive effect). Each Lender will furnish the Company with a statement setting forth the calculations and the basis therefor, in each case in reasonable detail, and amount of each request by such Lender for compensation under this Section 6.01(a). If any Funding Party Lender requests compensation from the Company under this SECTION 7.5(BSection 6.01(a), the Company may, by notice to such Funding Party (with a copy to Lender through the Administrative Agent), suspend the obligation of such Funding Party thereafter Lender to make or continue Eurodollar Advances, or additional Loans of the Type for which compensation is requested to convert Base Rate Advances into Eurodollar Advances, the Company until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 6.04 hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2(ii) Without limiting the effect of the other foregoing provisions of this SECTION 7.5(B)Section 6.01, in the event that, by reason of any Regulatory Change, any Funding Party Lender either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Lender which includes deposits by reference to which the interest rate on Eurodollar Advances Term Benchmark Loans or CDOR Loans, as the case may be, is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that Lender which includes Eurodollar Advances Term Benchmark Loans or CDOR Loans, as the case may be, or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party Lender so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party Lender to make Term Benchmark Loans or continueCDOR Loans, or to convert Base Rate Advances intoas the case may be, Eurodollar Advances hereunder shall be suspended until the date such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 6.04 hereof shall be applicable).
3(iii) Without limiting Determinations and allocations by any Lender for purposes of this Section 6.01 of the effect of any Regulatory Change on its costs of maintaining its obligations to make Loans or of making or maintaining Loans or on amounts receivable by it in respect of Loans, and of the foregoing provisions additional amounts required to compensate such Lender in respect of any Additional Costs, shall be conclusive absent manifest error, provided that such determinations and allocations are made on a reasonable basis.
(iv) If any Lender demands compensation under this SECTION 7.5(B) (but without duplication)Section, the Company may, at any time upon at least three (3) Business Days’ prior notice to such Lender through the Administrative Agent, convert in full the then outstanding Term Benchmark Loans denominated in Dollars of such Lender (in which case the Company shall pay directly be obligated, if such conversion is made on a day that is not the last day of the then current Interest Period applicable to each Funding Party from time such affected Term Benchmark Loan, to time on request reimburse such amounts as such Funding Party may determine Lender, in accordance with Section 6.05, for any resulting loss or expense incurred by it) to be necessary to compensate suchan ABR Loan.
Appears in 1 contract
Sources: Credit Agreement (Iron Mountain Inc)
Additional Costs. 1) The Company shall pay directly to each Funding Party from time to time In case any law, regulation, treaty or official directive or the interpretation or application thereof by any court or any governmental authority charged with the administration thereof, in any such amounts as such Funding Party may determine to be necessary to compensate such Funding Party for case enacted or made effective after the date hereof, or the compliance with any costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making guideline or maintaining request of any Eurodollar Advances central bank or its obligation to make any Eurodollar Advances under other governmental authority (whether or not having the Operative Documents, or any reduction in any amount receivable by such Funding Party under force of law) made effective after the Operative Documents in respect of any of such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change thatdate hereof:
(Aa) shall subject subjects any Funding Party (or its Applicable Lending Office for any of such Advances) Bank to any tax, duty tax with respect to payments of principal or interest or any other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable hereunder by Borrower or otherwise with respect to such Funding Party under the Operative Documents in respect of any of such Funded Amounts transactions contemplated hereby (excluding (A) franchise except for taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, Bank imposed by the jurisdiction in which such Funding Party has its principal office United States of America or such Applicable Lending Officeany political subdivision thereof); or;
(Bb) imposes imposes, modifies or modifies deems applicable any deposit insurance, reserve, special deposit or similar requirements (other thanrequirement against assets held by, or deposits in or for the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets account of, or any deposits with or other liabilities of, such Funding Party (including, without limitationloans by, any of such Advances or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder)Bank; or
(Cc) imposes upon any Bank any other condition affecting with respect to its performance under this Agreement, and the Operative Documents (or result of any of the foregoing is to increase the cost to such extensions Bank, reduce the income receivable by such Bank or impose any expense upon such Bank with respect to any Advances, such Bank shall notify Borrower thereof. Borrower agrees to pay to such Bank the amount of credit such increase in cost, reduction in income or liabilities) additional expense as and when such cost, reduction or its Commitmentsexpense is incurred or determined, upon presentation by such Bank of a statement of the amount and setting forth such Bank's calculation thereof, all in reasonable detail, which statement shall be deemed true and correct absent manifest error. If No Bank shall be entitled to any Funding Party requests compensation from the Company under pursuant to this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be 2.5 in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason respect of any Regulatory Change, any Funding Party either such event (i) incurs Additional Costs based on or measured by the for any period of time in excess above a specified level of the amount of a category of deposits or other liabilities of ninety (90) days prior to such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances notice or (ii) becomes subject for any period of time prior to restrictions on the amount of such a category of liabilities or assets that it may hold, then, notice if such Funding Party so elects by Bank shall not have given such notice to the Company within ninety (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E90) hereof shall be applicable).
3) Without limiting the effect days of the foregoing provisions of this SECTION 7.5(B) (but without duplication)date on which such event shall have been enacted, the Company shall pay directly to each Funding Party from time to time on request promulgated, adopted or issued in definitive or final form unless such amounts as such Funding Party may determine to be necessary to compensate suchevent is retroactive.
Appears in 1 contract
Additional Costs. 1(a) The Company Borrower shall pay directly to each Funding Party Bank, from time to time time, on demand of any such Bank, such amounts as such Funding Party Bank may reasonably determine to be necessary to compensate such Funding Party it for any costs actually incurred by such Funding Party that such Funding Party which Bank reasonably determines are attributable to its making or maintaining of any Eurodollar Advances or its obligation to make any Eurodollar Advances under the Operative DocumentsLoan or issue any Letter of Credit hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any such Loans or Letters of such Advances Credit or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change that:
which: (Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Bank under the Operative Documents this Agreement or its Note or any Letter of Credit in respect of any of such Funded Amounts obligations (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or Bank for any of such Applicable Lending Office, in each case, obligations by the jurisdiction in which such Funding Party Bank has its principal office or such Applicable Lending OfficeOffice or franchise taxes imposed in lieu of income taxes); or
or (Bii) imposes or modifies any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Bank (including, without limitation, including any of such Advances Loans or any deposits referred to in the definition definitions of "Eurodollar RateLIBOR Loans" or ") or any commitment Letters of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunderCredit"); or
or (Ciii) imposes any other condition affecting the Operative Documents this Agreement, or its Note (or any of such extensions of credit or liabilities) or its Commitmentsany Letter of Credit and such Bank's obligations with respect thereto. If Each Bank will notify the Agent and the Borrower of any Funding Party requests event occurring after the date of this Agreement which will entitle such Bank to compensation from the Company under pursuant to this SECTION 7.5(B), the Company may, by notice Section 4.2(a) as promptly as practicable after it obtains knowledge thereof and determines to request such Funding Party (with a copy compensation. Notwithstanding anything herein to the Administrative Agent)contrary, suspend no provision of this Section 4.2(a) shall be deemed to require the obligation of such Funding Party thereafter Borrower to make or continue Eurodollar Advances, or any payment of any amount to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED extent that such suspension shall not affect payment would duplicate any payment made by the right of such Funding Party Borrower pursuant to receive the compensation so requestedSection 3.7 hereof.
2(b) Without limiting the effect of the other foregoing provisions of this SECTION 7.5(B)Section 4.2, in the event that, by reason of any Regulatory Change, any Funding Party Bank either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Bank which includes deposits by reference to which the interest rate on Eurodollar Advances LIBOR Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that Bank which includes Eurodollar Advances LIBOR Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party Bank so elects by notice to the Company (with a copy to the Administrative Agent)Borrower, the obligation of such Funding Party Bank to make or continue, or to convert Base Rate Advances into, Eurodollar Advances LIBOR Loans hereunder shall be suspended until the date such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof Section 4.5 shall be applicable).
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 4.2 (but without duplication), the Company Borrower shall pay directly to each Funding Party Bank from time to time on request such amounts as such Funding Party Bank may reasonably determine to be necessary to compensate suchsuch Bank for any costs which it reasonably determines are attributable to the maintenance by it or any of its 31 Affiliates pursuant to any law or regulation of any jurisdiction or any interpretation, directive or request (whether or not having the force of law and whether in effect on the date of this Agreement or thereafter) of any court or governmental or monetary authority, of capital in respect of its Loans or other obligations hereunder (such compensation to include, without limitation, an amount equal to any reduction in return on assets or equity of such Bank to a level below that which it could have achieved but for such law, regulation, interpretation, directive or request). Each Bank will notify the Agent and the Borrower if it is entitled to compensation pursuant to this Section 4.2(c) as promptly as practicable after it determines to request such compensation.
(d) A statement of any Bank setting forth such amount or amounts, supported by calculations in reasonable detail, as shall be necessary to compensate such Bank as specified in paragraphs (a), (b) and (c) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay each such Bank the amount shown as due on any such statement within ten (10) days after its receipt of the same.
(e) Any Bank claiming any additional amounts payable pursuant to this Section 4.2 agrees to use reasonable efforts (consistent with legal and regulatory restrictions) to designate a different Lending Office if the making of such a designation would avoid the need for, or reduce the amount of, any such additional amounts and would not, in the reasonable judgment of such Bank, be otherwise disadvantageous to such Bank.
Appears in 1 contract
Sources: Revolving Credit Agreement (Genovese Drug Stores Inc)
Additional Costs. 1) The Company shall pay directly to each Funding Party If any future applicable law, which expression, as used herein, includes statutes, rules and regulations thereunder and interpretations of any present or future laws by any competent court or by any governmental or other regulatory body or official charged with the administration or the interpretation thereof and requests, directives, instructions and notices at any time or from time to time such amounts as such Funding Party may determine hereafter made upon or otherwise issued to be necessary to compensate such Funding Party for Consignor by any costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making central bank or maintaining other fiscal, monetary or other authority (whether or not having the force of any Eurodollar Advances or its obligation to make any Eurodollar Advances under the Operative Documents, or any reduction in any amount receivable by such Funding Party under the Operative Documents in respect of any of such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"law), resulting from any Regulatory Change thatshall:
(Aa) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) Consignor to any taxtax (except for Excluded Taxes), duty levy, impost, duty, charge, fee, deduction or other charge in withholding of any nature with respect to the making of such Funded Amounts or changes Fixed Rate Consignments, or
(b) materially change the basis of taxation (except for Excluded Taxes) of payments to Consignor of the principal of or the interest on Fixed Rate Consignments or any other amounts payable to such Funding Party Consignor under this Agreement for Fixed Rate Consignments, or
(c) impose or increase or render applicable (other than to the Operative Documents extent specifically provided for elsewhere in this Agreement) any special deposit, reserve, assessment, liquidity, capital adequacy or other similar requirements (whether or not having the force of law) against assets held by, or deposits in or for the account of, or loans by, or commitments of an officer of Consignor, or
(d) impose on Consignor any other conditions or requirements with respect to Fixed Rate Consignments or any class of commitments of which any of Fixed Rate Consignments form a part;
(e) and the result of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(B) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (including, without limitation, any of such Advances or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder); or
(C) imposes any other condition affecting the Operative Documents (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either foregoing is: (i) incurs Additional Costs based on to increase the cost to Consignor of making, funding, issuing, renewing, extending or measured by the excess above a specified level maintaining any of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances Fixed Rate Consignments, or (ii) becomes subject to restrictions on reduce the amount of such a category principal, interest or other amount payable to Consignor hereunder on account of liabilities any of the Fixed Rate Consignments, or assets that it may hold(iii) to require Consignor to make any payment or to forego any interest or other sum payable hereunder, the amount of which payment or foregone interest or other sum is calculated by reference to the gross amount of any sum receivable or deemed received by Consignor for Customer hereunder, then, if and in each such Funding Party so elects case, Customer will, upon demand by notice to the Company (with a copy to the Administrative Agent)Consignor, the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party at any time and from time to time on request and as often as the occasion therefor may arise, pay to Consignor such additional amounts as such Funding Party may determine to will be necessary sufficient to compensate suchConsignor for such additional cost, reduction, payment or foregone interest or other sum.
Appears in 1 contract
Additional Costs. 1(a) The Company Borrowers shall pay directly to each Funding Party the Bank from time to time on demand such amounts as such Funding Party the Bank may determine to be necessary to compensate such Funding Party it for any costs actually incurred by such Funding Party that such Funding Party which the Bank determines are attributable to its making or maintaining of any Eurodollar Advances LIBOR Loans under this Agreement or the Note or its obligation to make any Eurodollar Advances under the Operative Documentssuch Revolving Loans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances Revolving Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change that:
which: (Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party the Bank under this Agreement or the Operative Documents Note in respect of any of such Funded Amounts Revolving Loans (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party the Bank or of its Lending Office for any of such Applicable Lending Office, in each case, Revolving Loans by the jurisdiction in which such Funding Party has its principal office the Principal Office or such Applicable Lending OfficeOffice is located); or
or (Bii) imposes or modifies any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party the Bank (including, without limitation, including any of such Advances Revolving Loans or any deposits referred to in the definition of "Eurodollar LIBO Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder" in Section 1.1); or
or (Ciii) imposes any other condition affecting this Agreement or the Operative Documents Note (or any of such extensions of credit or liabilities). The Bank will notify the Borrowers of any event occurring after the date of this Agreement which will entitle the Bank to compensation pursuant to this Section 3.1(a) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice as promptly as practicable after it obtains knowledge thereof and determines to request such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requestedcompensation.
2(b) Without limiting the effect of the other foregoing provisions of this SECTION 7.5(B)Section 3.1, in the event that, by reason of any Regulatory Change, any Funding Party the Bank either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that the Bank which includes deposits by reference to which the interest rate on Eurodollar Advances LIBOR Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that the Bank which includes Eurodollar Advances LIBOR Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party the Bank so elects by notice to the Company (with a copy to the Administrative Agent)Borrowers, the obligation of such Funding Party the Bank to make or continuerenew, or and to convert Base Rate Advances Revolving Loans of any other type into, Eurodollar Advances Revolving Loans of such type hereunder shall be suspended until the date such Regulatory Change ceases to be in effect (effect, and the Borrowers shall on the last day(s) of the then current Interest Period(s) for the outstanding Revolving Loans of such type, either prepay such Revolving Loans or convert such Revolving Loans into another type of Revolving Loan in which case the provisions of SECTION 7.5(E) hereof shall be applicable)accordance with Section 2.5.
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 3.1 (but without duplication), the Company Borrowers shall pay directly to each Funding Party the Bank from time to time on request such amounts as such Funding Party the Bank may determine to be necessary to compensate suchcompensate
Appears in 1 contract
Sources: Credit Agreement (Tridex Corp)
Additional Costs. 1) The Company In addition to, and not in limitation of the immediately preceding clause (a), the Borrower shall promptly pay directly to each Funding Party the Administrative Agent for the account of a Lender from time to time such amounts as such Funding Party Lender may determine to be necessary to compensate such Funding Party Lender for any costs actually incurred by such Funding Party Lender that such Funding Party it determines are attributable to its making or maintaining of any Eurodollar Advances SOFR Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsSOFR Loans hereunder, or any reduction in any amount receivable by such Funding Party Lender under this Agreement or any of the Operative other Loan Documents in respect of any of such Advances SOFR Loans or such obligation or the maintenance by such Lender of capital in respect of its SOFR Loans or its Commitments (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"“Additional Costs”), resulting from any Regulatory Change that:
: (Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Lender under this Agreement or any of the Operative other Loan Documents in respect of any of such Funded Amounts SOFR Loans or its Commitments (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on measured by the overall net income of such Funding Party Lender or of its Lending Office for any of such Applicable Lending Office, in each case, SOFR Loans by the jurisdiction in which such Funding Party Lender has its principal office or such Applicable Lending Office); or
, or (Bii) imposes or modifies any reserve, special deposit or similar requirements (including without limitation, Regulation D of the Board of Governors of the Federal Reserve System or other than, in the case similar reserve requirement applicable to any other category of any Funding Party for any period as liabilities or category of extensions of credit or other assets by reference to which the Company interest rate on SOFR Loans is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereindetermined) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (includingor other credit extended by, without limitation, any of such Advances or any deposits referred to in the definition other acquisition of "Eurodollar Rate") funds by such Lender (or its parent corporation), or any commitment of such Funding Party Lender (including, without limitation, the Commitments of such Funding Party Lender hereunder); or
(C) imposes any other condition affecting the Operative Documents (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make iii) has or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting would have the effect of reducing the other provisions rate of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based return on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities capital of such Funding Party Lender to a level below that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until Lender could have achieved but for such Regulatory Change ceases (taking into consideration such Lender’s policies with respect to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicablecapital adequacy).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate such
Appears in 1 contract
Sources: Credit Agreement (NNN Reit, Inc.)
Additional Costs. 1(a) The Company Borrower shall pay directly to each Funding Party Bank from time to time such amounts as such Funding Party Bank may determine to be necessary to compensate such Funding Party it for any reasonable costs actually incurred by such Funding Party that Bank which such Funding Party Bank determines are directly attributable to its making or maintaining of any Loans subject to Eurodollar Advances Accounts hereunder or its obligation to make any Eurodollar Advances under the Operative Documentsof such Loans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change thatwhich:
(Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Bank under the Operative Documents this Agreement or its Notes in respect of any of such Funded Amounts Loans (excluding (A) other than franchise taxes and taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Bank or its Applicable Lending Office for any of such Applicable Lending Office, in each case, Loans by the United States of America or the jurisdiction in which such Funding Party Bank has its principal office Principal Office or such Applicable Lending Office); or;
(Bii) imposes or modifies any reservereserve (other than the Reserve Requirement), special deposit deposit, minimum capital, capital ratio, or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) requirement relating to any extensions of credit or other assets of, or any deposits with or other liabilities or commitments of, such Funding Party Bank (including, without limitation, including any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder" in Section 1.1 hereof); or
(Ciii) imposes any other condition affecting this Agreement or the Operative Documents (Notes or any of such extensions of credit or liabilitiesliabilities or commitments and which results in additional cost or expense to the Bank. Each Bank will notify the Borrower (with a copy to the Agent) of any event occurring after the date of this Agreement which will entitle such Bank to compensation pursuant to this subsection 7.1(a) as promptly as practicable after it obtains knowledge thereof and determines to request such compensation, and will designate a different Applicable Lending Office for the Loans affected by such event if such designation will avoid the need for, or its Commitmentsreduce the amount of, such compensation and will not, in the sole opinion of such Bank, violate any law, rule, or regulation or be in any way disadvantageous to such Bank. Each Bank will furnish the Borrower with a certificate setting forth the basis and the amount of each request of such Bank for compensation under this subsection 7.1(a). If any Funding Party Bank requests compensation from the Company Borrower under this SECTION 7.5(Bsubsection 7.1(a), the Company Borrower may, by notice to such Funding Party Bank (with a copy to the Administrative Agent), ) suspend the obligation of such Funding Party thereafter Bank to make Loans subject to Eurodollar Accounts or continue Continue Eurodollar Advances, Accounts as Eurodollar Accounts or to convert Convert Base Rate Advances Accounts into Eurodollar Advances, Accounts until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 7.4 hereof shall be applicableapplicable with respect to such Eurodollar Accounts), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2(b) Without limiting the effect of the other foregoing provisions of this SECTION 7.5(B)Section 7.1, in the event that, by reason of any Regulatory Change, any Funding Party Bank either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Bank which includes deposits by reference to which the interest rate on the Loans subject to Eurodollar Advances Accounts is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that Bank which includes Loans subject to Eurodollar Advances Accounts or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party Bank so elects by notice to the Company Borrower (with a copy to the Administrative Agent), the obligation of such Funding Party Bank to make Loans subject to Eurodollar Accounts or continue, Continue Eurodollar Accounts as Eurodollar Accounts or to convert Convert Base Rate Advances into, Accounts into Eurodollar Advances Accounts hereunder shall be suspended until such the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 7.4 hereof shall be applicable).
3(c) Without limiting Determinations and allocations by any Bank for purposes of this Section 7.1 of the effect of any Regulatory Change on its costs of maintaining its obligation to make Loans or of making or maintaining Loans or on amounts receivable by it in respect of the foregoing provisions Loans, and of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such additional amounts as such Funding Party may determine to be necessary required to compensate suchsuch Bank in respect of any Additional Costs, shall, absent manifest error, be conclusive, provided that such determinations and allocations are made on a reasonable basis.
Appears in 1 contract
Additional Costs. 1(a) The Company Borrower shall pay directly to each Funding Party Lender or the Issuing Bank, as the case may be, upon demand from time to time such amounts as the Issuing Bank or such Funding Party Lender or its holding company, as the case may be, may determine to be necessary to compensate such Funding Party it for any costs actually incurred by which the Issuing Bank or such Funding Party that Lender or such Funding Party holding company, as the case may be, determines are attributable to its issuing, maintaining or participating in any Letter of Credit or its making or maintaining of any Eurodollar Advances Loans to the Borrower or its obligation to make any Eurodollar Advances under Loans to the Operative DocumentsBorrower hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Issuing Bank or Lender hereunder in respect of any of such Advances Loans or Letters of Credit or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change that:
which (Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to the Issuing Bank or such Funding Lender or such holding company, as the case may be, by any Credit Party under the Operative Documents this Agreement or any other Loan Document in respect of any of such Funded Amounts Loans (excluding (A) franchise other than changes in respect of taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Lender or of such its Applicable Lending Office, in each case, Office for any of such Loans by the jurisdiction in which such Funding Party Lender has its principal office or such Applicable Lending Office)) or Letters of Credit; or
or (Bii) imposes imposes, modifies or modifies deems applicable any reserve, special deposit deposit, minimum capital, capital ratio or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, the Issuing Bank or such Funding Party Lender, as the case may be, (including, without limitation, including any of such Advances Loans or Letters of Credit or any deposits referred to in the definition of "Eurodollar LIBO Rate") ), or any commitment the Commitment of such Funding Party Lender; or (including, without limitation, the Commitments of such Funding Party hereunder); or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or any other Loan Document (or any of such extensions of credit or liabilities) or its the Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2(b) Without limiting the effect of the other provisions of this SECTION 7.5(BSection 5.01(a), in the event that, by reason of any Regulatory Change, any Funding Party Lender either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Lender which includes deposits by reference to which the interest rate on 54 Eurodollar Advances Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that Lender which includes Eurodollar Advances Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party Lender so elects by notice to the Company (with a copy to the Administrative Agent)Borrower, the obligation of such Funding Party Lender to make or continuemake, or and to convert Base Rate Advances ABR Loans into, Eurodollar Advances Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof and all Eurodollar Loans held by such Lender shall be applicableautomatically converted into ABR Loans at the end of the then current Interest Period for each of them, or on such earlier date as such Lender may specify in writing as being the last permissible date for such prepayment under applicable law, rules or regulations).
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company Borrower shall pay directly to the Issuing Bank and to each Funding Party Lender and to their holding companies from time to time on request such amounts as the Issuing Bank or such Funding Party Lender or such holding company, as the case may be, may determine to be necessary to compensate suchthe Issuing Bank or such Lender or such holding company, as the case may be, for any costs which it determines are attributable to the maintenance by the Issuing Bank or such Lender or such holding company (or any Applicable Lending Office), as the case may be, pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law) of any Governmental Authority, of capital in respect of the Issuing Bank's or such Lender's Commitment (such compensation to include an amount equal to any reduction of the rate of return on assets or equity of the Issuing Bank or such Lender (or any Applicable Lending Office) to a level below that which the Issuing Bank or such Lender (or any Applicable Lending Office) could have achieved but for such law, regulation, interpretation, directive or request).
(d) Determinations and allocations by the Issuing Bank and any Lender for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to Section 5.01(a) or (b), or of the effect of capital maintained pursuant to Section 5.01(c), on its costs or rate of return of maintaining Loans or Letters of Credit or its obligation to make Loans, or Letters of Credit, or to participate in Letters of Credit, or on amounts receivable by it in respect of Loans or Letters of Credit, and of the amounts required to compensate such Lender under this Section 5.01, shall be conclusive absent manifest error.
Appears in 1 contract
Additional Costs. 1(a) The Company shall pay directly to each Funding Party from time to time such amounts as such Funding Party may determine to be necessary to compensate such Funding Party for any costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making or maintaining of any Eurodollar Advances or its obligation to make any Eurodollar Advances under If the Operative Documentsadoption of, or any reduction change in, any Requirement of Law or in the interpretation or application thereof or compliance by any amount receivable by such Funding Party under Revolving Credit Lender with any request or directive (whether or not having the Operative Documents in respect force of any of such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting law) from any Regulatory Change thatcentral bank or other Governmental Authority or the NAIC made subsequent to the Closing Date:
(Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) Revolving Credit Lender to any taxtax of any kind whatsoever with respect to this Agreement, duty any Note, any Letter of Credit or other charge in respect any Revolving Credit Lender’s participation therein, any Letter of such Funded Amounts Credit Document or changes any LIBOR Loan made by it or change the basis of taxation of any amounts payable payments to such Funding Party under the Operative Documents Revolving Credit Lender in respect of thereof by any of such Funded Amounts Governmental Authority (excluding (A) franchise except for taxes imposed on it or (B) covered by Section 5.6 and changes in the rate of tax on the overall net income of such Funding Party Revolving Credit Lender by any Governmental Authority);
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Applicable Lending Office, Revolving Credit Lender which is not otherwise included in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office)determination of the LIBOR Rate hereunder; or
(Biii) imposes shall impose on such Revolving Credit Lender any other condition; and the result of any of the foregoing is to increase the cost to such Revolving Credit Lender, by an amount which such Revolving Credit Lender deems to be material, of making, converting into, continuing or modifies maintaining LIBOR Loans or issuing or participating in Letters of Credit or to reduce any reserve, special deposit or similar requirements (other thanamount receivable hereunder in respect thereof then, in any such case, Borrower shall promptly pay such Revolving Credit Lender, upon its demand, any additional amounts necessary to compensate such Revolving Credit Lender for such increased cost or reduced amount receivable. If any Revolving Credit Lender becomes entitled to claim any additional amounts pursuant to this subsection, it shall promptly notify Borrower, through the case Administrative Agent, of the event by reason of which it has become so entitled. A certificate as to any additional amounts setting forth the calculation of such additional amounts pursuant to this Section 5.1 submitted by such Revolving Credit Lender, through the Administrative Agent, to Borrower shall be conclusive in the absence of clearly demonstrable error. This covenant shall survive the termination of this Agreement and the payment of the Notes and all other amounts payable hereunder.
(b) In the event that any Revolving Credit Lender shall have determined that the adoption after the Closing Date of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) belowlaw, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit rule, regulation or other assets of, guideline regarding capital adequacy (or any deposits with change after the Closing Date therein or other liabilities of, such Funding Party (including, without limitation, in the interpretation or application thereof) or compliance by any of such Advances Revolving Credit Lender or any deposits referred to in corporation controlling such Revolving Credit Lender with any request or directive after the definition Closing Date regarding capital adequacy (whether or not having the force of "Eurodollar Rate"law) from any central bank or any commitment of such Funding Party (Governmental Authority or the NAIC, including, without limitation, the Commitments issuance of any final rule, regulation or guideline, does or shall have the effect of reducing the rate of return on such Funding Party hereunder); or
Revolving Credit Lender’s or such corporation’s capital as a consequence of its obligations hereunder or under any Letter of Credit to a level below that which such Revolving Credit Lender or such corporation could have achieved but for such adoption, change or compliance (Ctaking into consideration such Revolving Credit Lender’s or such corporation’s policies with respect to capital adequacy) imposes any other condition affecting the Operative Documents (or any of by an amount deemed by such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation Revolving Credit Lender to be material, then from the Company under this SECTION 7.5(B)time to time, the Company may, after submission by notice such Revolving Credit Lender to such Funding Party Borrower (with a copy to the Administrative Agent)) of a prompt written request therefor, suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise Borrower shall promptly pay to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that Revolving Credit Lender such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on additional amount or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as will compensate such Funding Party may determine to be necessary to compensate suchRevolving Credit Lender for such reduction.
Appears in 1 contract
Additional Costs. 1(a) The Company Borrower shall pay directly to each Funding Party the Agent on behalf of any Bank, from time to time time, within two days of the demand of any such Bank, such amounts as such Funding Party Bank may reasonably determine to be necessary to compensate such Funding Party it for any costs actually incurred by which such Funding Party that such Funding Party Bank reasonably determines are attributable to its making or maintaining of any Eurodollar Advances or its obligation to make any Eurodollar Advances under the Operative DocumentsLoan hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change that:
which: (Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Bank under the Operative Documents this Agreement or its Note or any Letter of Credit or any Documentary Banker's Acceptance in respect of any of such Funded Amounts Loans or obligations (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on the overall net income or franchise of such Funding Party Bank or of its Lending Office for any of such Applicable Lending Office, in each case, Loans by the jurisdiction in which such Funding Party Bank has its principal office or such Applicable Lending Office); or
or (Bii) imposes or modifies any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Bank (including, without limitation, including any of such Advances Loans or any deposits referred to in the definition definitions of "Eurodollar RateLIBOR Loans" or ") Letters of Credit" or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder"Documentary Banker's Acceptances" in Section 1.1); or
or (Ciii) imposes any other condition affecting the Operative Documents this Agreement, or its Note (or any of such extensions of credit or liabilities) or its Commitmentsany Letter of Credit or any Documentary Banker's Acceptance and such Bank's obligations with respect thereto. If Each Bank will notify the Agent, and the Agent shall notify the Borrower of any Funding Party requests event occurring after the date of this Agreement which will entitle such Bank to compensation from pursuant to this Section 4.2(a) as promptly as practicable after it obtains knowledge thereof and determines to request such compensation, which notice shall set forth the Company under this SECTION 7.5(B), basis of the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation calculation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right additional compensation. The determination by any Bank of such Funding Party to receive amount, if done in good faith on the compensation so requested.
2) Without limiting the effect basis of the other provisions of this SECTION 7.5(B)any reasonable method, shall, in the event that, by reason absence of any Regulatory Changedemonstrable error, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable)conclusive.
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate such
Appears in 1 contract
Additional Costs. 1(i) The Company shall pay directly to each Funding Party from time to time such amounts as such Funding Party may determine to be necessary to compensate such Funding Party for any costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making or maintaining of any Eurodollar Advances or its obligation to make any Eurodollar Advances under the Operative Documents, or any reduction in any amount receivable by such Funding Party under the Operative Documents in respect of any of such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:
(A) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation Without duplication of any amounts payable to such Funding Party under described in Section 3.03(c), 4.04(a) or 4.04(b)(ii), if after the Operative Documents date hereof there shall have occurred any change in respect any law or regulation or in the interpretation thereof by any court or Governmental Authority charged with the administration thereof or the enactment of any of such Funded Amounts (excluding law or regulation shall either (A) franchise taxes imposed on it impose, modify or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(B) imposes or modifies deem applicable any reserve, special deposit or similar requirements requirement with respect to any Bank's Commitment or its Revolving Eurodollar Loans or (subject to Section 2.07(c)) Competitive Eurodollar Loans, (B) subject such Bank to any duty or other thancharge with respect to any of its Revolving Eurodollar Loans or (subject to Section 2.07(c)) Competitive Eurodollar Loans or its obligations to make Revolving Eurodollar Loans or (C) impose on such Bank any other condition regarding this Agreement, in its Commitment to make Revolving Eurodollar Loans or its Revolving Eurodollar Loans or (subject to Section 2.07(c)) Competitive Eurodollar Loans and the case result of any Funding Party for event referred to in clause (A), (B) or (C) shall be to increase the cost ("Additional Costs") to such Bank of maintaining its Commitment to make Revolving Eurodollar Loans or making or maintaining its Revolving Eurodollar Loans or (subject to Section 2.07(c)) Competitive Eurodollar Loans or shall reduce the amounts received or receivable hereunder (which Additional Costs shall be calculated by such Bank in good faith in accordance with each Bank's internal policies, including any period as reasonable averaging and attribution methods) by an amount which such Bank in good faith shall determine to which the Company is required be material, then, subject to pay any amount under PARAGRAPH 5Sections 4.04(c) belowand (d), the reserves and "Eurocurrency liabilities" under Regulation D referred relevant Borrower shall pay to thereinsuch Bank an amount equal to such Additional Costs.
(ii) relating to Without duplication of any extensions amounts described in Section 3.03(c), 4.04(a) or 4.04(b)(i), if after the date hereof the adoption of credit any applicable law, rule, regulation or other assets ofguideline regarding capital adequacy, or any deposits with or other liabilities ofchange therein, such Funding Party (including, without limitation, any of such Advances or any deposits referred to change in the definition interpretation or administration thereof by any Governmental Authority, central bank or comparable agency or instrumentality charged with the interpretation or administration thereof, or compliance by such Bank with any request or directive regarding capital adequacy (whether or not having the force of "Eurodollar Rate"law) of any such Governmental Authority, central bank or comparable agency or instrumentality, has or would have the effect of reducing the rate of return on capital for such Bank or any commitment corporation controlling such Bank as a consequence of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder); or
(C) imposes any other condition affecting the Operative Documents (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company obligations under this SECTION 7.5(BAgreement to a level below that which such Bank shall determine in good faith that reasonably could have been achieved but for such adoption, change or compliance (taking into consideration such Bank's or such corporation's policies with respect to capital adequacy), then from time to time, subject to Sections 4.04(c) and (d), the Company may, by notice relevant Borrower shall pay to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of Bank such Funding Party thereafter to make additional amount or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as will compensate such Funding Party may determine to be necessary to compensate suchBank for such reduction.
Appears in 1 contract
Sources: Revolving Credit and Competitive Advance Facility Agreement (Avon Products Inc)
Additional Costs. 1(a) The Company Parent shall pay directly to the Administrative Agent for the account of each Funding Party Lender from time to time such amounts as such Funding Party Lender may determine to be necessary to compensate such Funding Party it for any costs actually incurred by such Funding Party that Lender which such Funding Party Lender determines are attributable to its making making, maintaining, converting or maintaining continuing of any Eurodollar Advances Loans hereunder to the Parent or its obligation to make any Eurodollar Advances under of such Loans hereunder to the Operative DocumentsParent, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"“Additional Costs”), in each case resulting from any Regulatory Change thatwhich:
(Ai) shall subject any Funding Party (subjects the Lender to Taxes on its loans, loan principal, letters of credit, commitments, or other obligations, or its Applicable Lending Office for any of such Advances) to any taxdeposits, duty reserves, other liabilities or other charge in respect of such Funded Amounts capital attributable thereto, or changes the basis of taxation of any amounts payable to such Funding Party Lender under the Operative Documents this Agreement in respect of any of such Funded Amounts Loans (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, other than Indemnified Taxes covered by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending OfficeSection 5.08 hereof and Excluded Taxes); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, including any of such Advances Loans or any deposits referred to in the definition of "Eurodollar “Eurocurrency Base Rate"” in Section 1.01 hereof) or (except any commitment reserve requirement reflected in the definition of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunderEurocurrency Rate); or
(Ciii) imposes any other condition condition, cost or expense affecting the Operative Documents this Agreement (or any of such extensions of credit or liabilities). Each Lender will notify the Parent through the Administrative Agent of any event occurring after the Effective Date of this Agreement which will entitle such Lender to compensation pursuant to this Section 6.01(a) (an “Additional Cost Event”) as promptly as practicable after it obtains knowledge thereof and determines to request such compensation, provided, that the Parent shall not be obligated to compensate such Lender for any such Additional Costs incurred more than 180 days prior to the time the Lender first notifies the Parent of such Additional Cost Event (or its Commitmentssuch longer period if such Additional Cost Event is given retroactive effect). Each Lender will furnish the Parent with a statement setting forth the calculations and the basis therefor, in each case in reasonable detail, and amount of each request by such Lender for compensation under this Section 6.01(a). If any Funding Party Lender requests compensation from the Company Parent under this SECTION 7.5(BSection 6.01(a), the Company Parent may, by notice to such Funding Party (with a copy to Lender through the Administrative Agent), suspend the obligation of such Funding Party thereafter Lender to make or continue Eurodollar Advances, or additional Loans of the Type for which compensation is requested to convert Base Rate Advances into Eurodollar Advances, the Parent until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 6.04 hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2(b) Without limiting the effect of the other foregoing provisions of this SECTION 7.5(B)Section 6.01, in the event that, by reason of any Regulatory Change, any Funding Party Lender either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Lender which includes deposits by reference to which the interest rate on Eurodollar Advances Eurocurrency Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that Lender which includes Eurodollar Advances Eurocurrency Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party Lender so elects by notice to the Company Parent (with a copy to the Administrative Agent), the obligation of such Funding Party Lender to make or continue, or to convert Base Rate Advances into, Eurodollar Advances Eurocurrency Loans hereunder shall be suspended until the date such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 6.04 hereof shall be applicable).
3(c) Without limiting Determinations and allocations by any Lender for purposes of this Section 6.01 of the effect of any Regulatory Change on its costs of maintaining its obligations to make Loans or of making or maintaining Loans or on amounts receivable by it in respect of Loans, and of the foregoing provisions additional amounts required to compensate such Lender in respect of any Additional Costs, shall be conclusive absent manifest error, provided that such determinations and allocations are made on a reasonable basis.
(d) If any Lender demands compensation under this SECTION 7.5(B) (but without duplication)Section, the Company Parent may, at any time upon at least three (3) Business Days’ prior notice to such Lender through the Administrative Agent, convert in full the then outstanding Eurocurrency Loans denominated in Dollars of such Lender (in which case the Parent shall pay directly be obligated, if such conversion is made on a day that is not the last day of the then current Interest Period applicable to each Funding Party from time such affected Eurocurrency Loan, to time on request reimburse such amounts as such Funding Party may determine Lender, in accordance with Section 6.05 hereof, for any resulting loss or expense incurred by it) to be necessary to compensate suchan ABR Loan.
Appears in 1 contract
Additional Costs. 1(a) The Company Borrower shall pay directly to each Funding Party Lender from time to time such amounts as such Funding Party Lender may determine to be necessary to compensate such Funding Party Lender for any costs actually incurred by such Funding Party that such Funding Party Lender determines are attributable to its making or maintaining of any Eurodollar Advances Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsLoans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change that:: ----------------
(Ai) shall subject any Funding Party Lender (or its Applicable Lending Office for any of such AdvancesLoans) to any tax, duty or other charge in respect of such Funded Amounts Loans or its Notes or changes the basis of taxation of any amounts payable to such Funding Party Lender under the Operative Documents this Agreement or its Notes in respect of any of such Funded Amounts Loans (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Lender or of such Applicable Lending Office, in each case, Office by the jurisdiction in which such Funding Party Lender has its principal office or such Applicable Lending Office); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, than the Reserve Requirement used in the case determination of any Funding Party the Eurodollar Rate for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinInterest Period for such Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Base Rate") " in Section 1.01), or any commitment of such Funding Party Lender (including, without limitation, the Commitments of such Funding Party Lender hereunder); or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Notes (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party Lender requests compensation from the Company Borrower under this SECTION 7.5(B)paragraph, the Company Borrower may, by notice to such Funding Party Lender (with a copy to the Administrative Agent), suspend the obligation of such Funding Party Lender thereafter to make or continue Continue Eurodollar AdvancesLoans, or to convert Base Rate Advances Convert Loans of any other Type into Eurodollar AdvancesLoans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof Section 5.04 shall be applicable), PROVIDED provided -------- that such suspension shall not affect the right of such Funding Party Lender to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3b) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company Borrower shall pay directly to each Funding Party Lender from time to time on request such amounts as such Funding Party Lender may determine to be necessary to compensate suchsuch Lender (or, without duplication, the bank holding company of which such Lender is a subsidiary) for any costs that it determines are attributable to the maintenance by such Lender (or any Applicable Lending Office or such bank holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of any court or governmental or monetary authority (i) following any Regulatory Change or (ii) implementing any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) hereafter issued by any government or governmental or supervisory authority implementing at the national level the Basle Accord, of capital in respect of its Commitments or Loans (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Lender (or any Applicable Lending Office or such bank holding company) to a level below that which such Lender (or any Applicable Lending Office or such bank holding company) could have achieved but for such law, regulation, interpretation, directive or request).
(c) Each Lender shall notify the Borrower of any event occurring after the date hereof entitling such Lender to compensation under paragraph (a) or (b) of this Section 5.01 as promptly as practicable, but in any event within 45 days, after such Lender obtains actual knowledge thereof; provided that (i) if any Lender fails to give such notice within 45 days after -------- it obtains actual knowledge of such an event, such Lender shall, with respect to compensation payable pursuant to this Section 5.01 in respect of any costs resulting from such event, only be entitled to payment under this Section 5.01 for costs incurred from and after the date 45 days prior to the date that such Lender does give such notice and (ii) each Lender will designate a different Applicable Lending Office for the Loans of such Lender affected by such event if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the sole opinion of such Lender, be disadvantageous to such Lender, except that such Lender shall have no obligation to designate an Applicable Lending Office located in the United States of America. Each Lender will furnish to the Borrower a certificate setting forth the basis and amount of each request by such Lender for compensation under paragraph (a) or (b) of this Section 5.01. Determinations and allocations by any Lender for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to paragraph (a) of this Section 5.01, or of the effect of capital maintained pursuant to paragraph (b) of this Section 5.01 on its costs or rate of return of maintaining Loans or its obligation to make Loans, or on amounts receivable by it in respect of Loans, and of the amounts required to compensate such Lender under this Section 5.01, shall be conclusive, provided that such -------- determinations and allocations are made on a reasonable basis.
Appears in 1 contract
Sources: Credit Agreement (Premier Parks Inc)
Additional Costs. 1(a) The Company Borrower shall pay directly to each Funding Party the Bank from time to time such amounts as such Funding Party the Bank may reasonably determine to be necessary to compensate such Funding Party it for any costs actually incurred by such Funding Party that such Funding Party (not otherwise included in the Reserve Requirement) which the Bank determines are attributable to its making or maintaining of any Eurodollar Advances LIBOR Loans or COF Loans, or its obligation to make any Eurodollar Advances under the Operative Documents, LIBOR Loans hereunder or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances LIBOR Loans or COF Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"“Additional Costs”), resulting from any Regulatory Change thatwhich:
(Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party the Bank under this Agreement or the Operative Documents Note in respect of any of such Funded Amounts LIBOR Loans or COF Loans (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or the Bank for any of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending OfficeLoans); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party of the Bank (including, without limitation, including any of such Advances Loans, such obligations or any deposits referred to in the definition of "Eurodollar “LIBOR Base Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder” in Section 5.1 hereof); or
(Ciii) imposes any other condition affecting this Agreement or the Operative Documents Note (or any of such extensions of credit or liabilities). The Bank will notify the Borrower of any event occurring after the date of this Agreement which will entitle the Bank to compensation pursuant to this Section 1.12(a) or its Commitmentsas promptly as practicable after it obtains knowledge thereof and determines to request such compensation and will furnish the Borrower with a certificate setting forth in reasonable detail the basis and the calculation of the amount of each request for compensation under this Section 1.12(a). If any Funding Party the Bank requests compensation from the Company Borrower under this SECTION 7.5(BSection 1.12(a), the Company Borrower may, by notice to such Funding Party (with a copy to the Administrative Agent)Bank, suspend the obligation of such Funding Party thereafter the Bank to make or continue Eurodollar Advances, or additional Loans of the type with respect to convert Base Rate Advances into Eurodollar Advances, which such compensation is requested until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 1.15 hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2(b) Without limiting the effect of the other provisions of this SECTION 7.5(B)Section 1.12(a) hereof, in the event that, by reason of any Regulatory Change, any Funding Party the Bank either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that the Bank which includes deposits by reference to which the interest rate on Eurodollar Advances is LIBOR Loans or COF Loans determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that the Bank which includes Eurodollar Advances LIBOR Loans or COF Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party the Bank so elects by notice to the Company (with a copy to the Administrative Agent)Borrower, the obligation of such Funding Party the Bank to make additional LIBOR Loans or continue, or to convert Base Rate Advances into, Eurodollar Advances COF Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 1.15 hereof shall be applicable).
3(c) Without limiting Determinations and allocations by the Bank for purposes of this Section 1.12 of the effect of any Regulatory Change on its costs of making or maintaining LIBOR Loans or COF Loans or on amounts receivable by it in respect of LIBOR Loans or COF Loans its costs of maintaining its obligations to make LIBOR Loans, and of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such additional amounts as such Funding Party may determine to be necessary required to compensate suchthe Bank in respect of any Additional Costs, shall be conclusive, provided that such determinations and allocations are made on a reasonable basis.
(d) The Bank will notify the Borrower of any event that will entitle it to Additional Costs as promptly as practicable but in any event within 30 days after the Bank obtains knowledge thereof; provided that if the Bank fails to give such notice within 30 days after it obtains knowledge thereof the Bank shall only be entitled to payment of Additional Costs incurred from and after the date 30 days prior to the date that the Bank does give such notice; and provided, further, that the Bank will designate a different lending office for LIBOR Loans or COF Loans, as the case may be, if such designation will avoid or reduce the amount of Additional Costs and will not in the sole opinion of the Bank be disadvantageous to the Bank.
Appears in 1 contract
Additional Costs. 1(a) The Company shall pay directly to each Funding Bank Party from time to time such amounts as such Funding Bank Party may determine to be necessary to compensate such Funding Party it for any costs actually incurred by of such Funding Bank Party that which such Funding Bank Party determines are attributable to its making or maintaining of any Eurodollar Advances Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsLoans hereunder, or any reduction in any amount receivable by such Funding Bank Party under the Operative Documents hereunder in respect of any of such Advances Loans or such obligation obligation, or the issuance of or participation in Letters of Credit (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change thatwhich:
(Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Bank Party under the Operative Documents this agreement or its Note in respect of any of such Funded Amounts Loans or Letters of Credit (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on measured by the overall net income of such Funding Bank Party or of such its Applicable Lending Office, in each case, Office for any of such loans by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending OfficeOffice or the Principal Office is located); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, than the Reserve Requirement utilized in the case determination of any Funding Party the Eurodollar Rate for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinsuch Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Bank Party (including, without limitation, including any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Rate") " in Section 1.01 hereof), or the issuance of or participation in Letters of Credit, or any commitment of such Funding Bank Party (including, without limitation, including the Commitments Commitment of such Funding Bank Party hereunder); or
(Ciii) imposes any other condition affecting this Agreement or the Operative Documents Notes (or any of such extensions of credit or liabilities) ), or its Commitmentsthe issuance of or participation in Letters of Credit, or the Commitment. If any Funding Bank Party requests compensation from the Company under this SECTION 7.5(B)Section 5.01(a) with respect to Eurodollar Loans, the Company may, by notice to such Funding Party (with a copy to the Administrative Agent)Bank Party, suspend the obligation of such Funding Bank Party thereafter to make or continue Continue Eurodollar AdvancesLoans, or to convert Convert Base Rate Advances Loans into Eurodollar AdvancesLoans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requestedeffect.
2(b) Without limiting the effect of the other provisions of this SECTION 7.5(B)Section 5.01(a) above, in the event that, by reason of any Regulatory Change, any Funding Bank Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Bank Party that which includes deposits by reference to which the interest rate on Eurodollar Advances Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Bank Party that which includes Eurodollar Advances Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Bank Party so elects by notice to the Company (with a copy to the Administrative Agent)Company, the obligation of such Funding Bank Party to make or continueContinue, or to convert Convert Base Rate Advances Loans into, Eurodollar Advances Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable)effect.
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company shall pay directly to each Funding any Bank Party from time to time on request such amounts as such Funding Bank Party may determine to be necessary to compensate suchsuch Bank Party (or, without duplication, the bank holding company of which such Bank Party is a subsidiary) for any costs of such Bank Party which it determines are attributable to the maintenance by such Bank Party (or any Applicable Lending Office or such bank holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law) of any court or governmental or monetary authority (i) following any Regulatory Change or (ii) implementing, after the Closing Date, any risk-based capital guideline or requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) heretofore or hereafter issued by any government or governmental or supervisory authority implementing at the national level the Basle Accord (including, without limitation, the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 CFR Part 208, Appendix A; ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇) and the Final Risk- Based Capital Guidelines of the Office of the Comptroller of the Currency (12 CFR Part 3, Appendix A)), of capital in respect of the Commitment, Loans, or issuance of or participations in Letters of Credit and commitments and loans and letters of credit of similar type (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Bank Party (or any Applicable Lending Office or such bank holding company) to a level below that which such Bank Party (or any Applicable Lending Office or such bank holding company) could have achieved but for such law, regulation, interpretation, directive or request). For purposes of this Section 5.01(c), "Basle Accord" shall mean the proposals for risk-based capital framework described by the Basle Committee on Lending Regulations and Supervisory Practices in its paper entitled "International Convergence of Capital Measurement and Capital Standards" dated July 1988, as amended, modified and supplemented and in effect from time to time or any replacement thereof.
Appears in 1 contract
Additional Costs. 1(a) The Company shall pay directly to each Funding Party Bank from time to time such amounts as such Funding Party Bank may reasonably determine to be necessary to compensate such Funding Party Bank for any costs actually incurred by such Funding Party that such Funding Party Bank determines are attributable to its making or maintaining of any Eurodollar Advances Fixed Rate Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsFixed Rate Loans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change that:
(Ai) shall subject any Funding Party Bank (or its Applicable Lending Office lending office for any of such AdvancesLoans) to any tax, duty or other charge in respect of such Funded Amounts Loans or its Notes or changes the basis of taxation of any amounts payable to such Funding Party Bank under the Operative Documents this Agreement or its Notes (if any) in respect of any of such Funded Amounts Loans (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income or gross receipts of such Funding Party Bank or of such Applicable Lending Office, in each case, lending office by the jurisdiction in which such Funding Party Bank has its principal office or such Applicable Lending Officelending office); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of any Funding Party Bank for any period as to which the Company is required to pay any amount under PARAGRAPH 5paragraph (d) below, the reserves and against "Eurocurrency liabilities" under Regulation D therein referred to thereinto) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Bank (including, without limitation, any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Fixed Base Rate") " in Section 1.01 hereof), or any commitment of such Funding Party Bank (including, without limitation, the Commitments Commitment of such Funding Party Bank hereunder); or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Notes (if any) (or any of such extensions of credit or liabilities) or its CommitmentsCommitment. If any Funding Party Bank requests compensation from the Company under this SECTION 7.5(BSection 5.01(a), the Company may, by notice to such Funding Party Bank (with a copy to the Administrative Agent), suspend the obligation of such Funding Party Bank thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, Loans until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable), PROVIDED provided that such suspension shall not affect the right of such Funding Party Bank to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3b) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company shall pay directly to each Funding Party Bank from time to time on request such amounts as such Funding Party Bank may reasonably determine to be necessary to compensate suchsuch Bank (or, without duplication, the bank holding company of which such Bank is a subsidiary) for any costs that it determines are attributable to the maintenance by such Bank (or any lending office or such bank holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of any court or governmental or monetary authority (i) following any Regulatory Change or (ii) implementing any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) hereafter issued by any government or governmental or supervisory authority implementing at the national level the Amended and Restated Credit Agreement 39 - 40 - Basle Accord, of capital in respect of its Commitment or Loans (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Bank (or any lending office or such bank holding company) to a level below that which such Bank (or any lending office or such bank holding company) could have achieved but for such law, regulation, interpretation, directive or request).
(c) Each Bank shall notify the Company of any event occurring after the date hereof entitling such Bank to compensation under paragraph (a) or (b) of this Section 5.01 as promptly as practicable, but in any event within 60 days, after such Bank obtains actual knowledge thereof; provided that (i) if any Bank fails to give such notice within 60 days after it obtains actual knowledge of such an event, such Bank shall, with respect to compensation payable pursuant to this Section 5.01 in respect of any costs resulting from such event, only be entitled to payment under this Section 5.01 for costs incurred from and after the date 60 days prior to the date that such Bank does give such notice and (ii) each Bank will designate a different lending office for the Loans of such Bank affected by such event if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the sole opinion of such Bank, be disadvantageous to such Bank. Each Bank will furnish to the Company a certificate setting forth in reasonably specific detail the basis and amount of each request by such Bank for compensation under paragraph (a) or (b) of this Section 5.01. Determinations and allocations by any Bank for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to paragraph (a) of this Section 5.01, or of the effect of capital maintained pursuant to paragraph (b) of this Section 5.01, on its costs or rate of return of maintaining Loans or its obligation to make Loans, or on amounts receivable by it in respect of Loans, and of the amounts required to compensate such Bank under this Section 5.01, shall be conclusive, provided that such determinations and allocations are made on a reasonable basis.
(d) Without limiting the effect of the foregoing, the Company shall pay to each Bank on the last day of each Interest Period so long as such Bank is maintaining reserves against "Eurocurrency liabilities" under Regulation D (or, unless the provisions of paragraph (b) above are applicable, so long as such Bank is, by reason of any Regulatory Change, maintaining reserves against any other category of liabilities that includes deposits by reference to which the interest rate on Eurodollar Loans or LIBOR Market Loans is determined as provided in this Agreement or against any category of extensions of credit or other assets of such Bank that includes any Eurodollar Loans or LIBOR Market Loans) an additional amount (reasonably determined by such Bank and notified to the Company through the Administrative Agent) equal to the product of the following for each Eurodollar Loan or LIBOR Market Loan for each day during such Interest Period:
(i) the principal amount of such Eurodollar Loan or LIBOR Market Loan outstanding on such day; and
(ii) the remainder of (x) a fraction the numerator of which is the rate (expressed as a decimal) at which interest accrues on such Eurodollar Loan or LIBOR Market Loan for such Interest Period as provided in this Agreement (less the Applicable Margin) and the denominator of which is one minus the effective rate (expressed as a decimal) at which such reserve requirements are imposed on such Bank on such day minus (y) such numerator; and
(iii) 1/360.
Appears in 1 contract
Additional Costs. 1(a) The Company shall pay directly to each Funding Party from time to time such amounts as such Funding Party may determine to be necessary to compensate such Funding Party for any costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making or maintaining of any Eurodollar Advances or its obligation to make any Eurodollar Advances under If the Operative Documentsadoption of, or any reduction change in, in each case after the date hereof, any amount receivable Requirement of Law or in the interpretation or application thereof or compliance by such Funding Party under any Lender with any request or directive (whether or not having the Operative Documents in respect force of any of such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting law) from any Regulatory Change thatcentral bank or other Governmental Authority or the NAIC made subsequent to the date hereof:
(Ai) shall subject any Funding Party (Lender or its Applicable Lending Office for any of such Advances) L/C Lender to any taxadditional tax of any kind whatsoever with respect to this Agreement, duty any Note, any Letter of Credit or other charge in respect of any Lender's participation therein, any L/C Document or any Loan made by such Funded Amounts Lender or changes change the basis of taxation of any amounts payable payments to such Funding Party under the Operative Documents Lender in respect of thereof by any of such Funded Amounts Governmental Authority (excluding (A) franchise except for taxes imposed on it covered by or (B) expressly excluded from coverage by Section 5.06, changes in the rate of tax on the overall net income or net profits of such Funding Party Lender or of such its Applicable Lending Office, or any affiliate thereof or franchise taxes or similar taxes imposed with respect to or in lieu of its net income or net profits by any Governmental Authority);
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender or L/C Lender which is not otherwise included in the determination of the LIBO Rate hereunder; or
(iii) shall impose on such Lender or L/C Lender any other condition (excluding taxes); and the result of any of the foregoing is to increase the cost to such Lender or L/C Lender, by an amount which such Lender or L/C Lender deems to be material (and it is the policy of such Lender or L/C Lender to seek reimbursement from a borrower for such amount), of making, converting into, continuing or maintaining LIBOR Loans or issuing or participating in Letters of Credit or to reduce any amount receivable hereunder in respect thereof then, in any such case, Borrower shall, within 10 days of written demand therefor, pay such Lender or L/C Lender any additional amounts necessary to compensate such Lender or L/C Lender on a net after-tax basis (taking into account any additional tax costs or tax benefits) for such increased cost or reduced amount receivable; PROVIDED, HOWEVER, that a Lender claiming additional amounts under this Section 5.01(a) agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate a different Applicable Lending Office if the making of such a designation would avoid the need for, or in the reasonable opinion of such Lender or L/C Lender materially reduce the amount of, such increased cost that may thereafter accrue and would not, in the sole judgment of such Lender, be otherwise disadvantageous to such Lender. Without limiting the survival of any other covenant hereunder, this Section 5.01 shall survive the termination of this Agreement and the payment of the Notes and all other Obligations payable hereunder.
(b) In the event that any Lender or L/C Lender shall have determined that the adoption after the date hereof of any law, rule, regulation or guideline regarding capital adequacy (or any change after the date hereof therein or in the interpretation or application thereof) or compliance by any Lender or L/C Lender or any corporation controlling such Lender or L/C Lender with any request or directive regarding capital adequacy (whether or not having the force of law) from any central bank or other Governmental Authority or the NAIC, in each case, by made subsequent to the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(B) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (including, without limitation, any of such Advances or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party (date hereof including, without limitation, the Commitments issuance after the date hereof of any final rule, regulation or guideline, does or shall have the effect of reducing the rate of return on such Lender's or L/C Lender's or such corporation's capital as a consequence of its obligations hereunder or under any Letter of Credit to a level below that which such Lender or L/C Lender or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender's or L/C Lender's or such corporation's policies with respect to capital adequacy) by an amount deemed by such Lender or L/C Lender to be material (and it is the policy of such Funding Party hereunder); or
(C) imposes any other condition affecting the Operative Documents (Lender or any of L/C Lender to seek reimbursement from a borrower for such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(Bamount), the Company maythen from time to time, after submission by notice such Lender or L/C Lender to such Funding Party Borrower (with a copy to the Administrative Agent)) of a written request therefor, suspend the obligation Borrower shall, within 10 days of such Funding Party thereafter to make or continue Eurodollar Advanceswritten request, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise pay to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that Lender or L/C Lender such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on additional amount or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as will compensate such Funding Party may determine to be necessary to compensate suchLender or L/C Lender on a net after-tax basis (taking into account any additional tax costs or tax benefits) for such reduction.
Appears in 1 contract
Additional Costs. 1(a) The Company shall pay directly to each Funding Party Lender from time to time such amounts as such Funding Party Lender may determine to be necessary to compensate such Funding Party Lender for any costs actually incurred by such Funding Party that such Funding Party Lender determines are attributable to its making or maintaining of any Eurodollar Advances Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsLoans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS")obligation, resulting from any Regulatory Change that:
(Ai) shall subject any Funding Party Lender (or its Applicable Lending Office for any of such AdvancesLoans) to any tax, duty or other charge in respect of such Funded Amounts Loans or changes change the basis of taxation of any amounts payable to such Funding Party Lender under the Operative Documents this Agreement in respect of any of such Funded Amounts Loans (excluding (A) franchise taxes imposed on it or (B) changes in the rate taxation of tax on the overall net income of such Funding Party Lender or of such Applicable Lending Office, in each case, Office by the jurisdiction in which such Funding Party Lender has its principal office or such Applicable Lending Office), provided that this Section 5.01(a)(i) shall not apply to any amounts excluded pursuant to the proviso to Section 5.06(a) hereof; or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, than the Reserve Requirement utilized in the case determination of any Funding Party the Eurodollar Rate for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinsuch Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Base Rate") " in Section 1.01 hereof), or any commitment of such Funding Party Lender (including, without limitation, the Commitments Commitment of such Funding Party Lender hereunder); oror Senior Guaranteed Credit Agreement
(Ciii) imposes any other condition affecting the Operative Documents this Agreement (or any of such extensions of credit or liabilities) or its CommitmentsCommitment. If any Funding Party Lender requests compensation from the Company under this SECTION 7.5(BSection 5.01(a), the Company may, by notice to such Funding Party Lender (with a copy to the Administrative Agent), suspend the obligation of such Funding Party Lender thereafter to make or continue Continue Eurodollar AdvancesLoans, or to convert Convert Base Rate Advances Loans into Eurodollar AdvancesLoans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable), PROVIDED provided that such suspension shall not affect the right of such Funding Party Lender to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3b) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company shall pay directly to each Funding Party Lender from time to time on request such amounts as such Funding Party Lender may determine to be necessary to compensate suchsuch Lender (or, without duplication, the bank holding company of which such Lender is a subsidiary) for any costs that it determines are attributable to the maintenance by such Lender (or any Applicable Lending Office or such bank holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of any court or Governmental Authority (i) following any Regulatory Change or (ii) implementing any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) hereafter issued by any Governmental Authority implementing at the national level the Basle Accord, of capital in respect of its Commitment or Loans (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Lender (or any Applicable Lending Office or such bank holding company) to a level below that which such Lender (or any Applicable Lending Office or such bank holding company) could have achieved but for such law, regulation, interpretation, directive or request).
(c) Each Lender shall notify the Company of any event occurring after the date hereof entitling such Lender to compensation under paragraph (a) or (b) of this Section 5.01 as promptly as practicable, but in any event within 45 days, after such Lender obtains actual knowledge thereof; provided that (i) if any Lender fails to give such notice within 45 days after it obtains actual knowledge of such an event, such Lender shall, with respect to compensation payable pursuant to this Section 5.01 in respect of any costs resulting from such event, only be entitled to payment under this Section 5.01 for costs incurred from and after the date 45 days prior to the date that such Lender does give such notice and (ii) each Lender will designate a different Applicable Lending Office for the Loans of such Lender affected by such event if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the sole opinion of such Lender, be disadvantageous to such Lender, except that such Lender shall have no obligation to designate an Applicable Lending Office located in the United States of America. Each Lender will furnish to the Company a certificate setting forth the basis and amount of each request by such Lender for compensation under paragraph (a) or (b) of this Section 5.01. Determinations and allocations by any Lender for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to paragraph (a) of this Section 5.01, or of the effect of capital maintained pursuant to paragraph (b) of this Section 5.01, on its costs or rate of return of maintaining Loans or its obligation to make Loans, or on amounts receivable by it in respect of Loans, and of the amounts required to compensate such Lender under this Section 5.01, shall be conclusive, provided that such determinations and allocations are made on a reasonable basis.
Appears in 1 contract
Sources: Senior Guaranteed Credit Agreement (Iridium Facilities Corp)
Additional Costs. 1(a) The Company Borrower shall pay directly to each Funding Party Lender from time to time within five Banking Days of demand therefor such amounts as such Funding Party Lender may reasonably determine to be necessary to compensate such Funding Party it for any costs actually incurred by which such Funding Party that such Funding Party Lender determines are attributable to its making or maintaining of any Eurodollar Advances Loans under this Agreement or its Note or its obligation to make any Eurodollar Advances under the Operative Documentssuch Loans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), ---------------- resulting from any Regulatory Change that:
which: (Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Lender under the Operative Documents this Agreement or its Note in respect of any of such Funded Amounts Loans (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Lender or of its Lending Office for any of such Applicable Lending Office, in each case, Loans by the jurisdiction in which such Funding Party Lender has its principal office or such Applicable Lending Office); or
or (Bii) imposes or modifies any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender; or (including, without limitation, any of such Advances or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder); or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Note (or any of such extensions of credit or liabilities). Each Lender will notify the Borrower of any event occurring after the date of this Agreement which will entitle such Lender to compensation pursuant to this (S) or its Commitments3.01(a) as promptly as practicable after it obtains knowledge thereof and determines to request such compensation. If any Funding Party Lender requests compensation from the Company Borrower under this SECTION 7.5(B(S) 3.01(a), or under (S) 3.01(c), the Company Borrower may, by notice to such Funding Party (Lender with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter Lender to make or continue Eurodollar Advances, or Loans of the type with respect to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to which such request ceases to be in effect compensation is requested (in which case the provisions of SECTION 7.5(E(S) hereof 3.04 shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2(b) Without limiting the effect of the other foregoing provisions of this SECTION 7.5(B)(S) 3.01, in the event that, by reason of any Regulatory Change, any Funding Party Lender either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Lender which includes deposits by reference to which the interest rate on Eurodollar Advances Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that Lender which includes Eurodollar Advances Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party Lender so elects by notice to the Company (Borrower with a copy to the Administrative Agent), the obligation of such Funding Party Lender to make or continue, or to convert Base Rate Advances into, Eurodollar Advances Loans of such type hereunder shall be suspended until the date such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E(S) hereof 3.04 shall be applicable).
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B(S) 3.01 (but without duplication), the Company Borrower shall pay directly to each Funding Party Lender from time to time on within five Banking Days of request therefor such amounts as such Funding Party Lender may determine to be necessary to compensate suchsuch Lender for any costs which it determines are attributable to the maintenance by the Lender or its bank holding company or any of its Affiliates, pursuant to any law or regulation of any jurisdiction or any interpretation, directive or request (whether or not having the force of law) of any court or governmental or monetary authority, whether in effect on the date of this Agreement or thereafter, of capital in respect of its Loans hereunder or its obligation to make Loans hereunder (such compensation to include, without limitation, an amount equal to any reduction in return on assets or equity of such Lender or its bank holding company or any of its Affiliates to a level below that which it could have achieved but for such law, regulation, interpretation, directive or request). Each Lender will notify the Borrower if such Lender is entitled to compensation pursuant to this (S) 3.01(c) as promptly as practicable after it determines to request such compensation.
(d) Determinations and allocations by a Lender for purposes of this (S) 3.01 of the effect of any Regulatory Change pursuant to subsections (a) or (b), or of the effect of capital maintained pursuant to subsection (c), on its costs of making or maintaining Loans or its obligation to make Loans, or on amounts receivable by, or the rate of return to, it in respect of Loans or such obligation, and of the additional amounts required to compensate such Lender under this (S) 3.01, shall be conclusive, provided that such determinations and allocations are made on a reasonable basis. Each Lender demanding payment from the Borrower pursuant to this (S)
3.01 shall furnish to the Borrower at the time of such demand a statement showing the basis for and the method of calculation of such demand.
Appears in 1 contract
Additional Costs. 1(a) The Company shall pay directly to each Funding Party Lender from time to time such amounts as such Funding Party Lender may determine to be necessary to compensate such Funding Party Lender for any costs actually incurred by such Funding Party Lender that such Funding Party Lender determines are attributable to its making or maintaining of any Eurodollar Advances Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsLoans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:
(Ai) shall subject any Funding Party Lender (or its Applicable Lending Office for any of such AdvancesLoans) to any tax, duty or other charge in respect of such Funded Amounts Loans or its Notes or changes the basis of taxation of any amounts payable to such Funding Party Lender under the Operative Documents this Agreement or its Notes in respect of any of such Funded Amounts Loans (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Lender or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party Lender has its principal office or such Applicable Lending Office); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of any Funding Party Lender for any period as to which the Company is required to pay any amount under PARAGRAPH 5paragraph (e) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Rate") " in SECTION 1.01 hereof), or any commitment of such Funding Party Lender (including, without limitation, the Commitments of such Funding Party Lender hereunder); or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Notes (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party Lender requests compensation from the Company under this SECTION 7.5(B5.01(A), the Company may, by notice to such Funding Party Lender (with a copy to the Administrative Agent), suspend the obligation of such Funding Party Lender thereafter to make or continue Continue Eurodollar AdvancesLoans, or to convert Convert Base Rate Advances Loans into Eurodollar AdvancesLoans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) 5.04 hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party Lender to receive the compensation so requested.
2(b) Without limiting the effect of the other provisions of paragraph (a) of this SECTION 7.5(B)5.01, in the event that, by reason of any Regulatory Change, any Funding Party Lender either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party Lender that includes deposits by reference to which the interest rate on Eurodollar Advances Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party Lender that includes Eurodollar Advances Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party Lender so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party Lender to make or continueContinue, or to convert Convert Base Rate Advances Loans into, Eurodollar Advances Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) 5.04 hereof shall be applicable).
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) 5.01 (but without duplication), the Company shall pay directly to each Funding Party Lender from time to time on request such amounts as such Funding Party Lender may determine to be necessary to compensate suchsuch Lender (or, without duplication, the bank holding company of which such Lender is a subsidiary) for any costs actually incurred by such Lender that it determines are attributable to the maintenance by such Lender (or any Applicable Lending Office or such bank holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of any court or governmental or monetary authority (i) following any Regulatory Change or (ii) implementing any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) heretofore or hereafter issued by any government or governmental or supervisory authority implementing at the national level the Basle Accord (including, without limitation, the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 C.F.R. Part 208, Appendix A; 12 C.F.R. Part 225, Appendix A) and the Final Risk-Based Capita▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ the Comptroller of the Currency (12 C.F.R. Part 3, Appendix A)), of capital in respect of its Commitments or Loans (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Lender (or any Applicable Lending Office or such bank holding company) to a level below that which such Lender (or any Applicable Lending Office or such bank holding company) could have achieved but for such law, regulation, interpretation, directive or request). For purposes of this SECTION 5.01(C) and SECTION 5.06 hereof, "BASLE ACCORD" shall mean the proposals for risk-based capital framework described by the Basle Committee on Banking Regulations and Supervisory Practices in its paper entitled "International Convergence of Capital Measurement and Capital Standards" dated July 1988, as amended, modified and supplemented and in effect from time to time or any replacement thereof.
Appears in 1 contract
Sources: Fourth Amended and Restated Credit Agreement (Cornell Companies Inc)
Additional Costs. 1(a) The Company Each Borrower shall pay directly to each Funding Party Lender from time to time such amounts as such Funding Party Lender may determine to be necessary to compensate such Funding Party Lender for any costs actually incurred by such Funding Party that such Funding Party Lender determines are attributable to its making or maintaining of any Eurodollar Advances Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsLoans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS")obligation, resulting from any Regulatory Change that:
(Ai) shall subject any Funding Party Lender (or its Applicable Lending Office for any of such AdvancesLoans) to any tax, duty or other charge in respect of such Funded Amounts Loans or its Notes or changes the basis of taxation of any amounts payable to such Funding Party Lender under the Operative Documents this Agreement or its Notes in respect of any of such Funded Amounts Loans (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Lender or of such Applicable Lending Office, in each case, Office by the jurisdiction in which such Funding Party Lender has its principal office or such Applicable Lending Office); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, than the Reserve Requirement Credit Agreement ---------------- utilized in the case determination of any Funding Party the Eurodollar Rate for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinsuch Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Base Rate") " in Section 1.01 hereof), or any commitment of such Funding Party Lender (including, without limitation, the Commitments of such Funding Party Lender hereunder); or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Notes (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party Lender requests compensation from the Company a Borrower under this SECTION 7.5(BSection 5.01(a), the Company such Borrower may, by notice to such Funding Party Lender through the Parent (with a copy to the Administrative Agent), suspend the obligation of such Funding Party Lender thereafter to make or continue Continue Eurodollar AdvancesLoans, or to convert Convert Base Rate Advances Loans into Eurodollar AdvancesLoans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party Lender to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3b) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company each Borrower shall pay directly to each Funding Party Lender from time to time on request such amounts as such Funding Party Lender may determine to be necessary to compensate suchsuch Lender (or, without duplication, the bank holding company of which such Lender is a subsidiary) for any costs that it determines are attributable to the maintenance by such Lender (or any Applicable Lending Office or such bank holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of any court or governmental or monetary authority (i) following any Regulatory Change or (ii) implementing any risk-based capital guideline or other requirement (whether or not Credit Agreement ---------------- having the force of law and whether or not the failure to comply therewith would be unlawful) hereafter issued by any government or governmental or supervisory authority implementing at the national level the Basle Accord, of capital in respect of its Commitments or Loans (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Lender (or any Applicable Lending Office or such bank holding company) to a level below that which such Lender (or any Applicable Lending Office or such bank holding company) could have achieved but for such law, regulation, interpretation, directive or request).
(c) Each Lender shall notify the Borrowers of any event occurring after the date hereof entitling such Lender to compensation under paragraph (a) or (b) of this Section 5.01 as promptly as practicable, but in any event within 180 days, after such Lender obtains actual knowledge thereof; PROVIDED that (i) if any Lender fails to give such notice within 180 days after it obtains actual knowledge of such an event, such Lender shall, with respect to compensation payable pursuant to this Section 5.01 in respect of any costs resulting from such event, only be entitled to payment under this Section 5.01 for costs incurred from and after the date 180 days prior to the date that such Lender does give such notice and (ii) each Lender will designate a different Applicable Lending Office for the Loans of such Lender affected by such event if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the sole opinion of such Lender, be disadvantageous to such Lender, except that such Lender shall have no obligation to designate an Applicable Lending Office located in the United States of America. Each Lender will furnish to the relevant Borrower a certificate setting forth in reasonable detail the basis and amount of each request by such Lender for compensation under paragraph (a) or (b) of this Section 5.01. Determinations and allocations by any Lender for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to paragraph (a) of this Section 5.01, or of the effect of capital maintained pursuant to paragraph (b) of this Section 5.01, on its costs or Credit Agreement ---------------- rate of return of maintaining Loans or its obligation to make Loans, or on amounts receivable by it in respect of Loans, and of the amounts required to compensate such Lender under this Section 5.01, shall be conclusive, PROVIDED that such determinations and allocations are made on a reasonable basis and consistent with the methodology generally applied by such Lender.
Appears in 1 contract
Additional Costs. 1(a) The Company shall pay directly to each Funding Party Bank from time to time such amounts as such Funding Party Bank may determine to be necessary to compensate such Funding Party Bank for any costs actually incurred by such Funding Party that such Funding Party Bank determines are attributable to its making or maintaining of any Eurodollar Advances Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsLoans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:
(Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Bank under the Operative Documents this Agreement or its Notes in respect of any of such Funded Amounts Loans (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on measured by the overall net income of such Funding Party Bank or of such its Applicable Lending Office, in each case, Office for any of such Loans by the jurisdiction in which such Funding Party Bank has its principal office or such Applicable Lending Office); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, than the Reserve Requirement utilized in the case determination of any Funding Party the Eurodollar Rate for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinsuch Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Bank (including, without limitation, any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Base Rate") " in Section 1.01 hereof), or any commitment of such Funding Party Bank (including, without limitation, either of the Commitments of such Funding Party Bank hereunder); or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Note (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party Bank requests compensation from the Company under this SECTION 7.5(BSection 5.01(a), the Company may, by notice to such Funding Party Bank (with a copy to the Administrative Agent), suspend the obligation of such Funding Party Bank thereafter to make or continue Continue Eurodollar AdvancesLoans, or to convert Base Convert Prime Rate Advances Loans into Eurodollar AdvancesLoans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party Bank to receive the compensation so requested.
2(b) Without limiting the effect of the other provisions of paragraph (a) of this SECTION 7.5(B)Section 5.01, in the event that, by reason of any Regulatory Change, any Funding Party Bank either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party Bank that includes deposits by reference to which the interest rate on Eurodollar Advances Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party Bank that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate suchLoans or
Appears in 1 contract
Sources: Credit Agreement (Forest Oil Corp)
Additional Costs. 1(a) The Company shall pay directly to each Funding Party Bank from time to time such amounts as such Funding Party Bank may determine to be necessary to compensate such Funding Party Bank for any costs actually incurred by such Funding Party that such Funding Party Bank determines are attributable to its making or maintaining of any Eurodollar Advances Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsLoans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change that:
(Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Bank under the Operative Documents in respect of any of such Funded Amounts this Agreement or its Notes (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on measured by the overall net income of such Funding Party Bank or of such its Applicable Lending Office, in each case, Office by the jurisdiction in which such Funding Party Bank has its principal office or such Applicable Lending Office); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, than the Reserve Requirement Credit Agreement utilized in the case determination of any Funding Party the Eurodollar Rate for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinsuch Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Bank (including, without limitation, any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Base Rate") " in Section 1.01 hereof), or any commitment of such Funding Party Bank hereunder (including, without limitation, the Commitments Commitment of such Funding Party hereunderBank); or
(Ciii) imposes any other condition affecting the Operative Documents (or any of such extensions of credit or liabilities) this Agreement or its CommitmentsNotes or its Commitment. If any Funding Party Bank requests compensation from the Company under this SECTION 7.5(BSection 5.01(a), the Company may, by notice to such Funding Party Bank (with a copy to the Administrative Agent), suspend the obligation of such Funding Party Bank thereafter to make or continue Continue Eurodollar AdvancesLoans, or to convert Convert Base Rate Advances Loans into Eurodollar AdvancesLoans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.03A hereof shall be applicable), PROVIDED provided that such suspension shall not affect the right of such Funding Party Bank to receive the compensation so requested.
2(b) Without limiting the effect of the other provisions of paragraph (a) of this SECTION 7.5(B)Section 5.01, in the event that, by reason of any Regulatory Change, any Funding Party Bank either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party Bank that includes deposits by reference to which the interest rate on Eurodollar Advances Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party Bank that includes Eurodollar Advances Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party Bank so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party Bank to make or continue, or to convert Base Rate Advances into, Eurodollar Advances Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the Loans theretofore made by such Bank shall bear interest at the Base Rate from the last day of the then current Interest Period for such Loans in accordance with the provisions of SECTION 7.5(E) hereof shall be applicableSection 5.03A).. Credit Agreement
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company shall pay directly to each Funding Party Bank from time to time on request such amounts as such Funding Party Bank may determine to be necessary to compensate suchsuch Bank (or, without duplication, the bank holding company of which such Bank is a subsidiary) for any costs that it determines are attributable to the maintenance by such Bank (or any Applicable Lending Office or such bank holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of any court or governmental or monetary authority (i) following any Regulatory Change or (ii) implementing any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) hereafter issued by any government or governmental or supervisory authority implementing at the national level the Basel Accord (including, without limitation, the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 C.F.R. Part 208, Appendix A; ▇▇ ▇.▇.▇. ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇) and the Final Risk-Based Capital Guidelines of the Office of the Comptroller of the Currency (12 C.F.R. Part 3, Appendix A)), of capital in respect of its Commitment(s) or Loans (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Bank (or any Applicable Lending Office or such bank holding company) to a level below that which such Bank (or any Applicable Lending Office or such bank holding company) could have achieved but for such law, regulation, interpretation, directive or request). For purposes of this Section 5.01(c), "Basel Accord" shall mean the proposals for risk-based capital framework described by the Basel Committee on Banking Regulations and Supervisory Practices in its paper entitled "International Convergence of Capital Measurement and Capital Standards" dated July 1988, as amended, modified and supplemented and in effect from time to time or any replacement thereof.
Appears in 1 contract
Sources: Credit Agreement (Enhance Financial Services Group Inc)
Additional Costs. 1(i) The Company shall pay directly to each Funding Party from time to time such amounts as such Funding Party may determine to be necessary to compensate such Funding Party for any costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making or maintaining of any Eurodollar Advances or its obligation to make any Eurodollar Advances under the Operative Documents, or any reduction in any amount receivable by such Funding Party under the Operative Documents in respect of any of such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:
(A) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation Without duplication of any amounts payable to such Funding Party under described in Section 3.03(c), 4.04(a) or 4.04(b)(ii), if after the Operative Documents date hereof there shall have occurred any change in respect any law or regulation or in the interpretation thereof by any court or Governmental Authority charged with the administration thereof or the enactment of any of such Funded Amounts (excluding law or regulation shall either (A) franchise taxes imposed on it impose, modify or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(B) imposes or modifies deem applicable any reserve, special deposit or similar requirements requirement with respect to any Bank’s Commitment or its Revolving Eurodollar Loans or (subject to Section 2.07(c)) Competitive Eurodollar Loans, (B) subject such Bank to any duty or other thancharge with respect to any of its Revolving Eurodollar Loans or (subject to Section 2.07(c)) Competitive Eurodollar Loans or its obligations to make Revolving Eurodollar Loans or (C) impose on such Bank any other condition regarding this Agreement, in its Commitment to make Revolving Eurodollar Loans or its Revolving Eurodollar Loans or (subject to Section 2.07(c)) Competitive Eurodollar Loans and the case result of any Funding Party for event referred to in clause (A), (B) or (C) shall be to increase the cost (“Additional Costs”) to such Bank of maintaining its Commitment to make Revolving Eurodollar Loans or making or maintaining its Revolving Eurodollar Loans or (subject to Section 2.07(c)) Competitive Eurodollar Loans or shall reduce the amounts received or receivable hereunder (which Additional Costs shall be calculated by such Bank in good faith in accordance with each Bank’s internal policies, including any period as reasonable averaging and attribution methods) by an amount which such Bank in good faith shall determine to which the Company is required be material, then, subject to pay any amount under PARAGRAPH 5Sections 4.04(c) belowand (d), the reserves and "Eurocurrency liabilities" under Regulation D referred relevant Borrower shall pay to thereinsuch Bank an amount equal to such Additional Costs. 29
(ii) relating to Without duplication of any extensions amounts described in Section 3.03(c), 4.04(a) or 4.04(b)(i), if after the date hereof the adoption of credit any applicable law, rule, regulation or other assets ofguideline regarding capital adequacy, or any deposits with or other liabilities ofchange therein, such Funding Party (including, without limitation, any of such Advances or any deposits referred to change in the definition interpretation or administration thereof by any Governmental Authority, central bank or comparable agency or instrumentality charged with the interpretation or administration thereof, or compliance by such Bank with any request or directive regarding capital adequacy (whether or not having the force of "Eurodollar Rate"law) of any such Governmental Authority, central bank or comparable agency or instrumentality, has or would have the effect of reducing the rate of return on capital for such Bank or any commitment corporation controlling such Bank as a consequence of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder); or
(C) imposes any other condition affecting the Operative Documents (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company obligations under this SECTION 7.5(BAgreement to a level below that which such Bank shall determine in good faith that reasonably could have been achieved but for such adoption, change or compliance (taking into consideration such Bank’s or such corporation’s policies with respect to capital adequacy), then from time to time, subject to Sections 4.04(c) and (d), the Company may, by notice relevant Borrower shall pay to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of Bank such Funding Party thereafter to make additional amount or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as will compensate such Funding Party may determine to be necessary to compensate suchBank for such reduction.
Appears in 1 contract
Sources: Revolving Credit and Competitive Advance Facility Agreement (Avon Products Inc)
Additional Costs. 1) The Company shall pay directly to each Funding Party from time to time such amounts as such Funding Party may determine to be necessary to compensate such Funding Party for any costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making or maintaining of any Eurodollar Advances or its obligation to make any Eurodollar Advances under the Operative Documents, or any reduction in any amount receivable by such Funding Party under the Operative Documents in respect of any of such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:
(Ai) shall subject any Funding Party Lender (or its Applicable Lending Office for any of such AdvancesLoans) to any tax, duty or other charge in respect of such Funded Amounts Loans or its Notes or changes the basis of taxation of any amounts payable to such Funding Party Lender under the Operative Documents this Agreement or its Notes in respect of any of such Funded Amounts Loans (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Lender or of such Applicable Lending Office, in each case, Office by the jurisdiction in which such Funding Party Lender has its principal office or such Applicable Lending Office); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, than the Reserve Requirement utilized in the case determination of any Funding Party the Eurodollar Rate for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinsuch Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Base Rate") " in Section 1.01 hereof), or any commitment of such Funding Party Lender (including, without limitation, the Commitments Revolving Credit Commitment of such Funding Party Lender hereunder); or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Notes (or any of such extensions of credit or liabilities) or its CommitmentsRevolving Credit Commitment. If any Funding Party Lender requests compensation from the Company Borrower under this SECTION 7.5(BSection 5.01(a), the Company Borrower may, by notice to such Funding Party Lender (with a copy to the Administrative Agent), suspend the obligation of such Funding Party Lender thereafter to make or continue Continue Eurodollar AdvancesLoans, or to convert Convert Base Rate Advances Loans into Eurodollar AdvancesLoans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable), PROVIDED provided that such suspension shall not affect the right of such Funding Party -------- Lender to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3b) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company Borrower shall pay directly to each Funding Party Lender from time to time on request such amounts as such Funding Party Lender may determine to be necessary to compensate suchsuch Lender (or, without 37 duplication, the bank holding company of which such Lender is a Subsidiary) for any costs that it determines are attributable to the maintenance by such Lender (or any Applicable Lending Office or such bank holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of any court or governmental or monetary authority (i) following any Regulatory Change or (ii) implementing any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) hereafter issued by any government or governmental or supervisory authority implementing at the national level the Basle Accord, of capital in respect of its Revolving Credit Commitment or Loans (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Lender (or any Applicable Lending Office or such bank holding company) to a level below that which such Lender (or any Applicable Lending Office or such bank holding company) could have achieved but for such law, regulation, interpretation, directive or request).
(c) Each Lender shall notify the Borrower of any event occurring after the date hereof entitling such Lender to compensation under paragraph (a) or (b) of this Section 5.01 as promptly as practicable, but in any event within 45 days, after such Lender obtains actual knowledge thereof; provided that (i) -------- if any Lender fails to give such notice within 45 days after it obtains actual knowledge of such an event, such Lender shall, with respect to compensation payable pursuant to this Section 5.01 in respect of any costs resulting from such event, only be entitled to payment under this Section 5.01 for costs incurred from and after the date 45 days prior to the date that such Lender does give such notice and (ii) each Lender will designate a different Applicable Lending Office for the Loans of such Lender affected by such event if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the sole opinion of such Lender, be disadvantageous to such Lender, except that such Lender shall have no obligation to designate an Applicable Lending Office located in the United States of America. Each Lender will furnish to the Borrower a certificate setting forth the basis and amount of each request by such Lender for compensation under paragraph (a) or (b) of this Section 5.01. Determinations and allocations by any Lender for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to paragraph (a) of this Section 5.01, or of the effect of capital maintained pursuant to paragraph (b) of this Section 5.01, on its costs or rate of return of maintaining Loans or its obligation to make Loans, or on amounts receivable by it in respect of Loans, and of the amounts required to compensate such Lender under this Section 5.01, shall be conclusive, provided that such determinations and allocations are -------- made on a reasonable basis.
Appears in 1 contract
Sources: Credit Agreement (Advanstar Inc)
Additional Costs. 1(a) The Company shall pay directly to the Administrative Agent for the account of each Funding Party Lender from time to time such amounts as such Funding Party Lender may determine to be necessary to compensate such Funding Party it for any costs actually incurred by such Funding Party that Lender which such Funding Party Lender determines are attributable to its making making, maintaining, converting or maintaining continuing of any Eurodollar Advances Loans hereunder to the Company or any other Borrower or its obligation to make any Eurodollar Advances under of such Loans hereunder to the Operative DocumentsCompany or any other Borrower, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"“Additional Costs”), in each case resulting from any Regulatory Change thatwhich:
(Ai) shall subject any Funding Party (subjects the Lender or Issuing Bank to Taxes on its loans, loan principal, letters of credit, commitments, or other obligations, or its Applicable Lending Office for any of such Advances) to any taxdeposits, duty reserves, other liabilities or capital attributable thereto (other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party under the Operative Documents in respect of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, than Indemnified Taxes covered by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending OfficeSection 5.08 and Excluded Taxes); or
(Bii) imposes imposes, modifies or modifies deems applicable any reserve, special deposit deposit, liquidity or similar requirements requirement (other thanincluding any compulsory loan requirement, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit insurance charge or other assessment) against assets of, or any deposits with or other liabilities for the account of, such Funding Party (including, without limitationor credit extended by, any of Lender (except any such Advances or any deposits referred to reserve requirement reflected in the definition of "Eurodollar Adjusted Term SOFR Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder)Issuing Bank; or
(Ciii) imposes any other condition condition, cost or expense affecting the Operative Documents this Agreement (or any of such extensions of credit or liabilities). Each Lender (such term to include the Issuing Bank for purposes of this Section 6.01(a), solely in the case of and with respect to (i) above) will notify the Company through the Administrative Agent of any event occurring after the Original Closing Date which will entitle such Lender to compensation pursuant to this Section 6.01(a) (an “Additional Cost Event”) as promptly as practicable after it obtains knowledge thereof and determines to request such compensation, provided, that the Company shall not be obligated to compensate such Lender for any such Additional Costs incurred more than 180 days prior to the time the Lender first notifies the Company of such Additional Cost Event (or its Commitmentssuch longer period if such Additional Cost Event is given retroactive effect). Each Lender will furnish the Company with a statement setting forth the calculations and the basis therefor, in each case in reasonable detail, and amount of each request by such Lender for compensation under this Section 6.01(a). If any Funding Party Lender requests compensation from the Company under this SECTION 7.5(BSection 6.01(a), the Company may, by notice to such Funding Party (with a copy to Lender through the Administrative Agent), suspend the obligation of such Funding Party thereafter Lender to make or continue Eurodollar Advances, or additional Loans of the Type for which compensation is requested to convert Base Rate Advances into Eurodollar Advances, the Company until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 6.04 hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2(b) Without limiting the effect of the other foregoing provisions of this SECTION 7.5(B)Section 6.01, in the event that, by reason of any Regulatory Change, any Funding Party Lender either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Lender which includes deposits by reference to which the interest rate on Eurodollar Advances Term Benchmark Loans or CDOR Loans, as the case may be, is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that Lender which includes Eurodollar Advances Term Benchmark Loans or CDOR Loans, as the case may be, or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party Lender so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party Lender to make Term Benchmark Loans or continueCDOR Loans, or to convert Base Rate Advances intoas the case may be, Eurodollar Advances hereunder shall be suspended until the date such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 6.04 hereof shall be applicable).
3(c) Without limiting Determinations and allocations by any Lender for purposes of this Section 6.01 of the effect of any Regulatory Change on its costs of maintaining its obligations to make Loans or of making or maintaining Loans or on amounts receivable by it in respect of Loans, and of the foregoing provisions additional amounts required to compensate such Lender in respect of any Additional Costs, shall be conclusive absent manifest error, provided that such determinations and allocations are made on a reasonable basis.
(d) If any Lender demands compensation under this SECTION 7.5(B) (but without duplication)Section, the Company may, at any time upon at least three (3) Business Days’ prior notice to such Lender through the Administrative Agent, convert in full the then outstanding Term Benchmark Loans denominated in Dollars of such Lender (in which case the Company shall pay directly be obligated, if such conversion is made on a day that is not the last day of the then current Interest Period applicable to each Funding Party from time such affected Term Benchmark Loan, to time on request reimburse such amounts as such Funding Party may determine Lender, in accordance with Section 6.05, for any resulting loss or expense incurred by it) to be necessary to compensate suchan ABR Loan.
Appears in 1 contract
Sources: Credit Agreement (Iron Mountain Inc)
Additional Costs. 1(a) The Company Borrower shall pay directly to each Funding Party Agent, for Agent and the Ratable benefit of the Lenders, from time to time time, as applicable, within ten (10) Business Days after demand therefor by Agent, such amounts as such Funding Party each Recipient may reasonably and in good faith determine to be necessary sufficient to compensate such Funding Party Recipient for any increase in costs actually incurred by such Funding Party that such Funding Party Recipient reasonably determines are attributable to its making or maintaining of any Eurodollar Advances or portion of the Loan or, with respect to Agent, its obligation to make any Eurodollar Advances under administer the Operative DocumentsLoan hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents in respect of any of such Advances Recipient hereunder or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"“Additional Costs”), in each case resulting from and limited to the amounts necessary to compensate each Recipient for any Regulatory Change that(i) which affects similarly situated banks or financial institutions generally and is not applicable to such Recipient primarily by reason of such Recipient’s particular conduct or condition and (ii) which:
(A) shall subject subjects any Funding Party Recipient to any Taxes (other than (1) Indemnified Taxes, (2) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (3) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations or its Applicable Lending Office for any of such Advances) to any taxdeposits, duty reserves, other liabilities or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party under the Operative Documents in respect of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office)capital attributable thereto; or
(B) imposes or modifies any reserve, special deposit or similar requirements (other than, than the Reserve Requirement utilized in the case determination of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinLIBOR Base Rate) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Recipient (including, without limitation, any of such Advances or any deposits referred to in the definition of "Eurodollar “LIBOR Base Rate") ”), or any commitment of such Funding Party Recipient (including, without limitation, the Commitments commitment of such Funding Party Recipient hereunder); or
(C) imposes any other condition affecting this Agreement or the Operative Documents Note (or any of such extensions of credit or liabilitiesliabilities referred to in subdivision (B) or its Commitmentsabove). If No Lender shall require Borrower to pay any Funding Party requests compensation from the Company amounts under this SECTION 7.5(B), the Company may, by notice Section 2.2.4(a) unless such Lender takes similar action with respect to other similarly situated borrowers with respect to loans where such Funding Party (with Lender has a copy contractual right to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requesteddo so.
2(b) Without limiting the effect of the other provisions of clause (a) of this SECTION 7.5(BSection 2.2.4 (but without duplication), in the event that, by reason of any Regulatory ChangeChange which affects similarly situated banks or financial institutions generally and is not applicable to a Lender primarily by reason of such Lender’s particular conduct or condition, any Funding Party either (i) Lender incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party Lender that includes deposits by reference to which the interest rate on Eurodollar Advances LIBOR Base Rate is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party Lender that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount portion of the Loan evidenced by such a category of liabilities or assets that it may holdLender’s Note, then, if such Funding Party Lender so elects by notice to the Company (with a copy to the Administrative Agent)Agent and Borrower, the obligation of such Funding Party Lender to make or continue, or to convert continue such portion of the Loan based on the LIBOR Base Rate Advances into, Eurodollar Advances hereunder shall be suspended effective on the last day of the then current Interest Period, until such Regulatory Change ceases to be in effect (in which case and the provisions portion of SECTION 7.5(E) hereof shall be applicable)the Loan evidenced by such Lender’s Note shall, during such suspension, bear interest at the Reference Rate plus the Margin.
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 2.2.4 (but without duplication), the Company Borrower shall pay directly to each Funding Party Lender from time to time on request such amounts as such Funding Party Lender may reasonably determine to be necessary to compensate suchsuch Lender (or, without duplication, the bank or bank holding company of which such Lender is a subsidiary) for any increase in costs that it reasonably and in good faith determines are attributable to the maintenance by such Lender (or any Applicable Lending Office or such parent bank or bank holding company of such Lender), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law) of any Governmental Authority (i) arising out of any Regulatory Change or (ii) implementing, after the date of this Agreement, any capital guideline or other requirement (whether or not having the force of law)
Appears in 1 contract
Additional Costs. 1(a) The Company Borrower shall pay directly to each Funding Party Bank from time to time on demand such amounts as such Funding Party Bank may determine to be necessary to compensate such Funding Party it for any costs actually incurred by which such Funding Party that such Funding Party Bank determines are attributable to its making or maintaining of any Eurodollar Advances Loans or Fed Funds Rate Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsLoans or Fed Funds Rate Loans hereunder, or any reduction in any amount received or receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances Eurodollar Loans or Fed Funds Rate Loans or such obligation (such increases in costs and reductions in amounts received or receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change thatwhich:
(Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Bank under the Operative Documents in respect of any of such Funded Amounts this Agreement or its Note (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Bank or of such its Applicable Lending Office, in each case, Office imposed by the United States of America or by the jurisdiction in which such Funding Party Bank has its principal office or such Applicable Lending Office); or;
(Bii) imposes imposes, modifies, or modifies deems applicable any reserve, special deposit deposit, or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (including, without limitation, any Bank or the Commitment of such Advances Bank in respect of Eurodollar Loans or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder)Fed Funds Rate Loans; or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Note (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation Commitment in respect of such Funding Party thereafter to make Eurodollar Loans or continue Eurodollar Advances, or to convert Base Fed Funds Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requestedLoans.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3b) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.1 (but without duplication), the Company Borrower shall pay directly to each Funding Party Bank from time to time on request demand such amounts as such Funding Party Bank may determine to be necessary to compensate suchsuch Bank or any Person controlling such Bank for any increased costs which it determines are attributable to the maintenance by such Bank or such Person (or any Applicable Lending Office) of capital in respect of such Bank's Commitment or Loans as a result of any Regulatory Change, such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Bank or such Person (or any Applicable Lending Office) to a level below that which such Bank or such Person (or any Applicable Lending Office), taking into account their policies concerning capital adequacy, could have achieved but for such Regulatory Change.
(c) Each Bank will notify the Borrower of any event occurring after the date of this Agreement that will entitle such Bank to compensation under paragraph (a) or (b) of this Section 5.1 as promptly as practicable. Together with the delivery of such notice, the relevant Bank will furnish to the Borrower a certificate setting forth the basis and amount of each request by such Bank for compensation under paragraph (a) or (b) of this Section 5.1. Determinations and allocations by any Bank for purposes of this Section 5.1 of the effect of any Regulatory Change, law, regulation, or request of any central bank or other monetary authority and computations of amounts payable set forth in the certificate referred to in the preceding sentence shall be made in good faith and shall be conclusive and binding on the Borrower in the absence of manifest error.
Appears in 1 contract
Sources: Credit Agreement (Integra Bank Corp)
Additional Costs. 1(a) The Company Borrower shall pay directly to each Funding Party the Bank, from time to time time, within two Banking Days of receipt of the written demand of the Bank, such amounts as such Funding Party the Bank may reasonably determine to be necessary to compensate such Funding Party it for any additional costs actually incurred by such Funding Party that such Funding Party the Bank which the Bank reasonably determines are attributable to its making or maintaining of any Eurodollar Advances or its obligation to make any Eurodollar Advances under the Operative DocumentsLoan hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change that:
which: (Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party the Bank under this Agreement or the Operative Documents Notes in respect of any of such Funded Amounts obligations (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or the Bank for any of such Applicable Lending Office, in each case, obligations by the jurisdiction in which such Funding Party the Bank has its principal office or such Applicable Lending Office); or
or (Bii) imposes or modifies any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party the Bank (including, without limitation, including any of such Advances Loans or any deposits referred to in the definition of "Eurodollar RateLIBOR Loans") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder); or
or (Ciii) imposes any other condition affecting this Agreement, or the Operative Documents Notes (or any of such extensions of credit or liabilities) or its Commitmentsand the Bank's obligations with respect thereto. If The Bank will notify the Borrower in writing of any Funding Party requests event occurring after the date of this Agreement which will entitle the Bank to compensation from the Company under pursuant to this SECTION 7.5(B), the Company may, by notice Section 5.2(a) as promptly as practicable after it obtains knowledge thereof and determines to request such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requestedcompensation.
2(b) Without limiting the effect of the other foregoing provisions of this SECTION 7.5(B)Section 5.2, in the event that, by reason of any Regulatory Change, any Funding Party the Bank either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that the Bank which includes deposits by reference to which the interest rate on Eurodollar Advances LIBOR Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that the Bank which includes Eurodollar Advances LIBOR Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party the Bank so elects by notice to the Company (with a copy to the Administrative Agent)Borrower, the obligation of such Funding Party the Bank to make or continue, or to convert Base Rate Advances into, Eurodollar Advances LIBOR Loans hereunder shall be suspended until the date such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof Section 5.5 shall be applicable).
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.2 (but without duplication), the Company Borrower shall pay directly to each Funding Party the Bank from time to time on request such amounts as such Funding Party the Bank may reasonably determine to be necessary to compensate suchthe Bank for any costs which it reasonably determines are attributable to the maintenance by it or any of its Affiliates pursuant to any law or regulation of any jurisdiction or any interpretation, directive or request (whether or not having the force of law and whether in effect on the date of this Agreement or thereafter) of any court or governmental or monetary authority, of capital in respect of its Loans or other obligations hereunder (such compensation to include, without limitation, an amount equal to any reduction in return on assets or equity of the Bank to a level below that which it could have achieved but for such law, regulation, interpretation, directive or request). The Bank will notify the Borrower if it is entitled to compensation pursuant to this Section 5.2(c) as promptly as practicable after it determines to request such compensation.
(d) Determinations and allocations by the Bank for purposes of this Section 5.2 of the effect of any Regulatory Change pursuant to subsections (a) or (b), or of the effect of capital maintained pursuant to subsection (c), on its costs of making or maintaining Loans or its obligation to make Loans, or on amounts receivable by, or the rate of return to, it in respect of Loans, and of the additional amounts required to compensate the Bank under this Section 5.2, shall be conclusive, absent manifest error, if such determination is made reasonably by the Bank and in good faith.
Appears in 1 contract
Sources: Credit Agreement (Technology Flavors & Fragrances Inc)
Additional Costs. 1) The Company shall pay directly to each Funding Party If any present or future applicable law ("Applicable Law"), which expression as used herein includes statutes, rules and regulations thereunder and interpretations thereof by any competent court or by any governmental or other regulatory body or official charged with the administration or the interpretation thereof and requests, directives, instructions and notices at any time or from time to time such hereafter made upon or otherwise issued to Lender by any central bank or other fiscal, monetary or other authority (whether or not having the force of law), including without limitation any change according to a prescribed schedule of increasing requirements, whether or not known or in effect as of the date hereof, shall with respect to any amounts as such Funding Party may determine to be necessary to compensate such Funding Party for any costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making or maintaining of any Eurodollar Advances or its obligation to make any Eurodollar Advances outstanding under the Operative DocumentsCredit Facility, or any reduction in any amount receivable by such Funding Party undertakings of the Lender under the Operative Documents in respect of any of such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:this Agreement
(Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) the Lender to any tax, duty levy, impost, duty, charge, fee, deduction or other charge in withholding of any nature with respect to this Agreement or undertakings of such Funded Amounts the Lender hereunder or changes the payment to the Lender of any amounts due to it hereunder, or
(ii) materially change the basis of taxation of payments to the Lender of the principal of or interest on any amounts payable to such Funding Party under the Operative Documents Lender hereunder, or
(iii) impose or increase or render applicable any special or supplemental deposit or reserve or similar requirements or assessment against assets held by, or deposits in or for the account of, or any liabilities of, or advances by the Lender in respect of the transactions contemplated herein, or
(iv) impose on the Lender any other condition or requirement with respect to this Agreement, the Credit Facility or advances thereunder, and the result of any of such Funded Amounts (excluding the foregoing is
(A) franchise taxes imposed on it to increase the cost to the Lender of making, funding or (B) changes in maintaining all or any part of the rate of tax on the overall net income of such Funding Party Credit Facility or of such Applicable Lending Officeadvances thereunder, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(B) imposes to reduce the amount of principal, interest or modifies other amount payable to the Lender hereunder, or
(C) to require the Lender to make any reservepayment or to forego any interest or other sum payable hereunder, special deposit the amount of which payment or similar requirements (foregone interest or other thansum is calculated by reference to the gross amount of any sum receivable or deemed received by the Lender from the Borrower hereunder, then, and in each such case not otherwise provided for hereunder, the Borrower will upon demand promptly following Lender's notice to the Borrower and the Lender pertaining to such matters accompanied by calculations thereof in reasonable detail, pay to the Lender such additional amounts as will be sufficient to compensate it for such additional cost, reduction, payment or foregone interest or other sum; provided that the foregoing provisions of this sentence shall not apply in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) belowadditional cost, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit reduction, payment or foregone interest or other assets of, sum resulting from any taxes charged upon or any deposits with or other liabilities of, such Funding Party (including, without limitation, any of such Advances or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder); or
(C) imposes any other condition affecting the Operative Documents (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement overall net income, profits or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3) Without limiting the effect gains of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate suchLender.
Appears in 1 contract
Additional Costs. 1(a) The Company shall pay directly to each Funding Party from time to time such amounts as such Funding Party may determine to be necessary to compensate such Funding Party for any costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making or maintaining If the adoption of any Eurodollar Advances Applicable Law, or any change in any Applicable Law, or any change in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender (or its Applicable Lending Office) with any request or directive (whether or not having the force of law) of any Governmental Authority (in each case above, at any time on or after the date hereof), shall impose, modify or deem applicable any reserve (including any such requirement imposed by the Board of Governors of the U.S. Federal Reserve System), special deposit, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (or its Applicable Lending Office) or shall impose upon any Lender (or its Applicable Lending Office) or the London interbank market any other condition affecting its Loan(s), its Note(s) or its obligation to make any Eurodollar Advances under its Loan, and the Operative Documents, or any reduction in any amount receivable by such Funding Party under the Operative Documents in respect result of any of the foregoing is to increase the cost to such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:
(A) shall subject any Funding Party Lender (or its Applicable Lending Office Office) of making or maintaining its Loan(s), or to reduce the amount of any sum received or receivable by such Lender (or its Applicable Lending Office) under this Agreement or under any other Loan Document (other than Taxes (including Excluded Taxes), which shall be treated pursuant to Section 4.5), then the Newark Subsidiaries, jointly and severally, shall pay to the Administrative Agent for any the account of such AdvancesLender such additional amount(s) to as will compensate such Lender for such increased cost or reduction.
(b) If any tax, duty or other charge in respect of such Funded Amounts or changes Lender shall have reasonably determined that the basis of taxation adoption of any amounts payable to such Funding Party under Applicable Law regarding capital adequacy, or any change therein, or any change in the Operative Documents in respect interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or compliance by it (or its Applicable Lending Office) with any request or directive regarding capital adequacy (whether or not having the force of law) of any Governmental Authority (in each case above, at any time on or after the date hereof), has or would have the effect of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in reducing the rate of tax return on the overall net income capital of such Funding Party Lender (or its parent or Applicable Lending Office) as a consequence of such Lender's obligations hereunder or its Loan(s) to a level below that which such Lender (or its parent or Applicable Lending Office) could have achieved but for such adoption, change, request or directive, then from time to time the Newark Subsidiaries, jointly and severally, shall pay to such Lender such additional amount as will compensate such Lender (or its parent or Applicable Lending Office, as the case may be) for such reduction.
(c) Each Lender shall promptly (and, in each caseany event, by within 90 days of its actual knowledge thereof) notify the jurisdiction Newark Subsidiaries of any event of which it has knowledge that will entitle such Lender to compensation pursuant to this Section and shall provide the Newark Subsidiaries with reasonable detail as to the basis of such Lender's claim to compensation hereunder and method for calculating such compensation; it being understood that any failure of any Lender to deliver any such notice shall result in its not being able to seek compensation pursuant to this Section for the period from and including the date of its actual knowledge of such event to but excluding the date that is 90 days before the date on which it has notified the Newark Subsidiaries of such Funding Party has its principal office or event. Before giving any such notice, a Lender shall designate a different Applicable Lending Office); or
Office if such designation: (Bi) imposes will avoid the need for, or modifies any reservereduce the Credit Agreement 22 amount of, special deposit or similar requirements such compensation and (other thanii) will not, in the case reasonable judgment of such Lender, be disadvantageous to such Lender. A notice of any Funding Party for Lender claiming compensation under this Section and providing the information set forth above within the time set forth above shall be prima facie evidence of its entitlement to such compensation and shall be binding upon the Newark Subsidiaries in the absence of manifest error and such amounts shall be payable by the Newark Subsidiaries, jointly and severally, promptly (and, in any period as to which the Company is required to pay any amount under PARAGRAPH 5event, within five Business Days) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (including, without limitation, any after receipt of such Advances or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party notice (including, without limitation, the Commitments of such Funding Party hereunder); or
(C) imposes any other condition affecting the Operative Documents (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects compensation relates to future dates, by notice to no later than the Company (with a copy to the Administrative Agent), the obligation of applicable dates indicated in such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicablenotice).
3(d) Without limiting For purposes of calculating amounts payable under this Section and Section 4.4, each Loan conclusively shall be deemed to have been funded at the effect of LIBO Rate applicable to such Loan by a matching deposit or other borrowing in the foregoing provisions of this SECTION 7.5(B) (but without duplication)interbank eurodollar market for a comparable amount and for a comparable period, the Company shall pay directly to each Funding Party from time to time on request whether or not such amounts as such Funding Party may determine to be necessary to compensate suchLoan was in fact so funded.
Appears in 1 contract
Additional Costs. 1() The Company Borrowers shall within two (2) Business Days of demand therefor by any Lender (with a copy of such demand to the Relevant Agent) pay directly to each Funding Party the Relevant Agent for the account of such Lender from time to time time, without duplication, such amounts as such Funding Party Lender may reasonably determine to be necessary to compensate such Funding Party it for any costs actually incurred by such Funding Party that such Funding Party Lender which it determines are attributable to its making or maintaining of any Eurodollar Advances Loan or its obligation to make any Eurodollar Advances under Loans, or the Operative Documentsissuance or maintenance by an Issuing Bank, of or any other Lender's Participation in any Letter of Credit issued hereunder, or any reduction in any amount receivable by such Funding Party Lender under this Agreement or the Operative Documents Bankers' Acceptances or the Notes in respect of any of such Advances Loans or such obligation the Letters of Credit, including reductions in the rate of return on a Lender's capital (such increases in costs and reductions in amounts receivable and returns being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change that:
which: (Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Lender under this Agreement or the Operative Documents Bankers' Acceptances or the Notes in respect of any of such Funded Amounts Loans or the Letters of Credit (excluding for purposes of this SECTION 7.1 any such increased costs resulting from (A) franchise taxes imposed on it or Taxes (as to which SECTION 7.7 shall govern), and (B) changes in the rate basis of tax on the taxation of overall net income of such Funding Party or of such Applicable Lending Office, in each caseoverall gross income by the United States, by Canada or by any other foreign jurisdiction or state under the jurisdiction in laws of which such Funding Party Lender is organized or has its principal office Lending Office or such Applicable Lending Officeany political subdivision thereof); or
or (Bii) imposes or modifies any reserve, special deposit special, deposit, or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (includingother than any such reserve, without limitationspecial, deposit or other similar requirement reflected in the Prime Rate, the Reference Rate, the Federal Funds Effective Rate or the Interbank Offered Rate, or otherwise provided for in SECTION 7.6); or (iii) has the effect of reducing the rate of return on capital of any such Lender to a level below that which the Lender would have achieved but for such Regulatory Change (taking into consideration such Lender's policies and the policies of its parent corporation with respect to capital adequacy); PROVIDED, HOWEVER, that any demand for Additional Costs is made by the applicable Lender within 60 days after the date on which the officer of such Advances Lender who has responsibility for compliance with the obligations under this Agreement knows or any deposits referred has reason to in the definition of "Eurodollar Rate") or any commitment know of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder); or
(C) imposes Lender's right to any other condition affecting the Operative Documents (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company Additional Costs under this SECTION 7.5(B)7.1(A) or, if any such Lender fails to deliver such demand within such 60- day period, such Lender shall only be entitled to compensation for any Additional Costs from and after the Company maydate that is 60 days prior to the date such Lender delivers such demand; and PROVIDED FURTHER, by notice HOWEVER, that before making any such demand, each Lender agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate a different Lending Office if the making of such a designation would avoid the need for, or reduce the amount of, such Additional Costs and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Funding Party (with a copy Lender. A certificate as to the Administrative Agent), suspend the obligation amount of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until Additional Costs (including the basis of calculation thereof) and an explanation of the Regulatory Change giving rise thereto, submitted to the Borrowers and the Relevant Agent by such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof Lender, shall be applicable)conclusive and binding for all purposes, PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requestedabsent demonstrable error.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate such
Appears in 1 contract
Sources: Credit Agreement (Consoltex Inc/ Ca)
Additional Costs. 1(a) The Company shall pay directly Notwithstanding anything herein to the contrary, if any Change in Law shall:
(i) subject Lender to any tax, levy, impost, duty, charge, fee, deduction or withholding of any nature with respect to this Agreement, the other Loan Documents, or the Loan (other than taxes based upon or measured by the gross receipts, income or profits of such Lender or its franchise tax), or
(ii) materially change the basis of taxation (except for changes in taxes on gross receipts, income or profits or its franchise tax) of payments to Lender of the principal of or the interest on the Loan or any other amounts payable to Lender under this Agreement or the other Loan Documents, or
(iii) impose or increase or render applicable any special deposit, reserve, assessment, liquidity, capital adequacy or other similar requirements (whether or not having the force of law and which are not already reflected in any amounts payable by Borrower hereunder) against assets held by, or deposits in or for the account of, or loans by, or commitments of an office of Lender, or
(iv) impose on Lender any other conditions or requirements with respect to this Agreement, the other Loan Documents, the Loan, or any class of loans or commitments of which any of the Loan forms a part; and
(b) the result of any of the foregoing scenarios as set forth in clauses (a)(i) through (iv) above is:
(i) to increase the cost to Lender of making, funding, issuing, renewing, extending or maintaining the Loan, or
(ii) to reduce the amount of principal, interest or other amount payable to Lender hereunder on account of the Loan, or
(iii) to require Lender to make any payment or to forego any interest or other sum payable hereunder, the amount of which payment or foregone interest or other sum is calculated by reference to the gross amount of any sum receivable or deemed received by (or on behalf of) such Lender from Borrower hereunder, then, and in each Funding Party such case, Borrower will (and as to clauses (a)(i) and (a))(ii) above, subject to the provisions of Section 2.2.4 hereof), within thirty (30) days of demand made by (or on behalf of) such Lender at any time and from time to time and as often as the occasion therefor may arise, pay to (or on behalf of) such Lender such additional amounts as such Funding Party may Lender shall determine in good faith to be necessary sufficient to compensate such Funding Party Lender for any costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making additional cost, reduction, payment or maintaining of any Eurodollar Advances or its obligation to make any Eurodollar Advances under the Operative Documents, or any reduction in any amount receivable by such Funding Party under the Operative Documents in respect of any of such Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:
(A) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty foregone interest or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party under the Operative Documents in respect of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Officesum, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(B) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (including, without limitation, any of such Advances or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder); or
(C) imposes any other condition affecting the Operative Documents (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with provided that Lender shall provide a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting the effect computation of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference same to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable)Borrower.
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate such
Appears in 1 contract
Additional Costs. 1(a) The Company Borrower shall pay directly to each Funding Party Lender from time to time such amounts as such Funding Party may determine to be are necessary to compensate such Funding Party Lender for any increase in costs actually incurred by such Funding Party that such Funding Party determines are attributable to its making or maintaining of any Eurodollar Advances Loans to the Borrower or its obligation to make any Eurodollar Advances under Loans hereunder to the Operative DocumentsBorrower, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), in each case, from those costs and amounts receivable existing on the date hereof, resulting from any Regulatory Change that:
(A) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party under the Operative Documents in respect of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(Bi) imposes or modifies any reserve, special deposit or similar requirements (other thanrequirements, in including any application of the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) requirement, relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, including any of such Advances Loans or any deposits referred to in the definition of "Eurodollar LIBOR Rate") " in Section 1.01), or any commitment of such Funding Party Lender (including, without limitation, including the Commitments Commitment of such Funding Party Lender hereunder); or
(Cii) imposes or any Lender or the London interbank market any other condition affecting the Operative Documents (this Agreement or any of Loans made by such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requestedLender.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3b) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company Borrower shall pay directly to each Funding Party Lender from time to time on request such amounts as such Funding Party Lender may determine in good faith to be necessary to compensate suchsuch Lender (or, without duplication, the bank holding company of which such Lender is a subsidiary) for any increase in costs that it in good faith determines is attributable to the maintenance by such Lender (or any Applicable Lending Office or such bank holding company), pursuant to any law or regulation or any interpretation, directive, guideline or request (whether or Commercial Banks Loan Agreement
Appears in 1 contract
Sources: Loan Agreement (Phelps Dodge Corp)
Additional Costs. 1(a) The Subject to SECTION 12.8, the Company shall pay directly to each Funding Party the Agent, on demand, for the account of such Bank, from time to time such amounts as such Funding Party any Bank may reasonably determine to be necessary to compensate such Funding Party it for any costs actually incurred by such Funding Party that Bank which such Funding Party Bank reasonably determines are attributable to its making or maintaining of any Eurodollar Advances Loan hereunder or its obligation to make or maintain any Eurodollar Advances under the Operative Documentssuch Loan hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), in each case resulting from any Regulatory Change thatwhich:
(A1) shall subject subjects such Bank (or makes it apparent that such Bank is subject) to any Funding Party tax (including any United States interest equalization tax), levy, impost, duty, charge or fee (collectively, "TAXES"), or any deduction or withholding for any Taxes on or from the payment due under any Eurodollar Loan or other amounts due hereunder, other than income and franchise taxes of the jurisdiction (or any subdivision thereof) in which such Bank has an office or its Applicable Lending Office for any of such AdvancesOffice; or
(2) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Bank under the Operative Documents this Agreement or its Note in respect of any of such Funded Amounts (excluding (A) franchise Loans, other than changes which affect taxes measured by or imposed on it or (B) changes in the rate of tax on the overall net income or franchise taxes of such Funding Party Bank or of such its Applicable Lending Office, in each case, Office for any of such Loans by the jurisdiction (or any subdivision thereof) in which such Funding Party Bank has its principal an office or such Applicable Lending Office); or
(B3) imposes or modifies or increases or deems applicable any Statutory Reserves or any other reserve, special deposit or similar requirements requirement (other than, in including any such requirement imposed by the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinBoard) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (includingBank or loans made by such Bank, without limitationor against any other funds, any of obliga tions or other property owned or held by such Advances or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder)Bank; or
(C4) imposes any other condition affecting the Operative Documents this Agreement (or any of such extensions of credit or liabilities) or its Commitments). If any Funding Party requests compensation from Each Bank will notify the Company through the Agent of any event occurring after the date of this Agreement which will entitle such Bank to compensation pursuant to this SECTION 6.1 as promptly as practicable after it obtains knowledge thereof and determines to request such compensation, and (if so requested by the Company through the Agent) will designate a different available Applicable Lending Office for the Eurodollar Loans of such Bank or take such other action as the Company may reasonably request if such designation or action is consistent with the internal policy of such Bank and legal and regulatory restrictions, can be undertaken at no additional cost, will avoid the need for, or reduce the amount of, such compensation and will not, in the sole opinion of such Bank, be disadvantageous to such Bank (PROVIDED that such Bank shall have no obligation so to designate an Applicable Lending Office located in the United States of America). Each Bank will furnish the Company with a statement setting forth the basis and amount of each request by such Bank for compensation under this SECTION 7.5(B)6.1, with each such statement to cover amounts accruing under this SECTION 6.1 with respect to a period beginning not earlier than 120 days from the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requesteddate thereof and using any reasonable averaging and attribution methods.
2(b) Without limiting the effect of the other foregoing provisions of this SECTION 7.5(B)6.1, in the event that, by reason of any Regulatory Change, any Funding Party Bank either (i1) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Bank which includes deposits by reference to which the interest rate on Eurodollar Advances Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that Bank which includes Eurodollar Advances Loans or (ii2) becomes subject to restrictions restric tions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party Bank so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party Bank to make or continue, or to convert Base Rate Advances into, Eurodollar Advances Loans hereunder shall be suspended until the date such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof 6.4 shall be applicable).
3(c) Without limiting Determinations and allocations by any Bank for purposes of this SECTION 6.1 of the effect of any Regulatory Change on its costs of maintaining its obligations to make Loans or of making or maintaining Eurodollar Loans or on amounts receivable by it in respect of Eurodollar Loans, and of the foregoing provisions additional amounts required to compensate such Bank in respect of any Additional Costs, shall be conclusive, absent manifest error, and may be made using any reasonable averaging and attribution methods.
(d) In the event any Bank shall seek compensation pursuant to this SECTION 7.5(B) (but without duplication)6.1, the Company shall pay directly may give notice to each Funding Party from time such Bank (with copies to time the Agent) that it wishes to seek one or more Eligible Assignees (which may be one or more of the Banks) to purchase and assume the Commitment, Loans, Note, Letter of Credit Liabilities and interests in this Agreement of such Bank. Each Bank requesting compensation pursuant to this SECTION 6.1 agrees to sell its Commitment, Loans, Note, Letter of Credit Liabilities and interests in this Agreement pursuant to SECTION 12.6 (without recourse, representation or warranty except as provided in SECTION 12.6) to any such Eligible Assignee for an amount equal to (x) the sum of the outstanding unpaid principal of and accrued interest on request such amounts as such Funding Party may determine to be necessary to compensate suchLoans, Note and Letter of Credit Advances, plus (y) in the case of the Issuer, Cover for the face amount of all undrawn Letter of Credit Liabilities plus
Appears in 1 contract
Additional Costs. 1(a) The Company shall pay directly to each Funding Party Lender from time to time such amounts as such Funding Party Lender may determine to be necessary to compensate such Funding Party Lender for any costs actually incurred by such Funding Party Lender that such Funding Party Lender determines are attributable to its making or maintaining of any Eurodollar Advances Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsLoans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:
(Ai) shall subject any Funding Party Lender (or its Applicable Lending Office for any of such AdvancesLoans) to any tax, duty or other charge in respect of such Funded Amounts Loans or its Notes or changes the basis of taxation of any amounts payable to such Funding Party Lender under the Operative Documents this Agreement or its Notes in respect of any of such Funded Amounts Loans (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Lender or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party Lender has its principal office or such Applicable Lending Office); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of any Funding Party Lender for any period as to which the Company is required to pay any amount under PARAGRAPH 5paragraph (e) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Rate") " in Section 1.01 hereof), or any commitment of such Funding Party Lender (including, without limitation, the Commitments of such Funding Party Lender hereunder); or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Notes (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party Lender requests compensation from the Company under this SECTION 7.5(BSection 5.01(a), the Company may, by notice to such Funding Party Lender (with a copy to the Administrative Agent), suspend the obligation of such Funding Party Lender thereafter to make or continue Continue Eurodollar AdvancesLoans, or to convert Convert Base Rate Advances Loans into Eurodollar AdvancesLoans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party Lender to receive the compensation so requested.
2(b) Without limiting the effect of the other provisions of paragraph (a) of this SECTION 7.5(B)Section 5.01, in the event that, by reason of any Regulatory Change, any Funding Party Lender either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party Lender that includes deposits by reference to which the interest rate on Eurodollar Advances Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party Lender that includes Eurodollar Advances Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party Lender so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party Lender to make or continueContinue, or to convert Convert Base Rate Advances Loans into, Eurodollar Advances Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable).
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company shall pay directly to each Funding Party Lender from time to time on request such amounts as such Funding Party Lender may determine to be necessary to compensate suchsuch Lender (or, without duplication, the bank holding company of which such Lender is a subsidiary) for any costs actually incurred by such Lender that it determines are attributable to the maintenance by such Lender (or any Applicable Lending Office or such bank holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of any court or governmental or monetary authority (i) following any Regulatory Change or (ii) implementing any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) heretofore or hereafter issued by any government or governmental or supervisory authority implementing at the national level the Basle Accord (including, without limitation, the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 C.F.R. Part 208, Appendix A; 12 C.F.R. Part 225, Appendix A) and the Final Risk-Based Capital Guid▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇mptroller of the Currency (12 C.F.R. Part 3, Appendix A)), of capital in respect of its Commitments or Loans (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Lender (or any Applicable Lending Office or such bank holding company) to a level below that which such Lender (or any
Appears in 1 contract
Sources: Subordinated Bridge Loan Agreement (Cornell Corrections Inc)
Additional Costs. 1(a) The Company shall pay directly to each Funding Party Lender from time to time on demand such amounts as such Funding Party Lender may reasonably determine to be necessary to compensate such Funding Party it for any costs actually incurred by which such Funding Party that such Funding Party Lender determines are attributable to its making or maintaining any Loans under this Agreement or its Note or the participation in Letters of any Eurodollar Advances Credit, or its obligation to make any Eurodollar Advances under the Operative Documentssuch Loans or participate in Letters of Credit hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any such Loans or Letters of such Advances Credit or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change that:
which: (Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Lender under the Operative Documents this Agreement or its Note in respect of any Loans or Letters of such Funded Amounts Credit (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Lender or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
or (Bii) imposes or modifies any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, including any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Fixed Base Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder" in Section 1.01); or
or (Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Note (or any of such extensions of credit or liabilities). Each Lender will notify the Company of any event occurring after the date of this Agreement which will entitle such Lender to compensation pursuant to this Section 5.01(a) or its Commitmentsas promptly as practicable after it obtains knowledge thereof, if it determines to request such compensation, and will set forth in reasonable detail the basis for and manner of determining such compensation. If any Funding Party Lender requests compensation from the Company under this SECTION 7.5(BSection 5.01(a), or under Section 5.01(c), the Company may, by notice to such Funding Party Lender (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter Lender to make or continue Eurodollar Advances, or Loans of the type with respect to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to which such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so is requested.
2(b) Without limiting the effect of the other foregoing provisions of this SECTION 7.5(B)Section 5.01, in the event that, by reason of any Regulatory Change, any Funding Party Lender either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Lender which includes deposits by reference to which the interest rate on Eurodollar Advances Fixed Rate Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that Lender which includes Eurodollar Advances Fixed Rate Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party Lender so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party Lender to make or continue, or to convert Base Rate Advances into, Eurodollar Advances Loans of such type hereunder shall be suspended until the earlier to occur of (y) the date such Lender is no longer within the restrictions of such Regulatory Change or (z) the date such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof Section 5.04 shall be applicable).
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company shall pay directly to each Funding Party Lender from time to time on request such amounts as such Funding Party Lender may reasonably determine to be necessary to compensate suchsuch Lender for any increased costs which it determines are attributable to the maintenance by it or any of its affiliates pursuant to any law or regulation of any jurisdiction or any interpretation, directive or request (whether or not having the force of law and whether in effect on the date of this Agreement or thereafter) of any court or governmental or monetary authority of capital in respect of its Loans or Letters of Credit hereunder or its obligation to make Loans or participate in Letters of Credit hereunder (such compensation to include, without limitation, an amount equal to any reduction in return on assets or equity of such Lender to a level below that which it could have achieved but for such law, regulation, interpretation, directive or request). Each Lender will notify the Company if it is entitled to compensation pursuant to this Section 5.01(c) as promptly as practicable after it obtains knowledge of the facts that entitled it to such compensation, if it determines to request such compensation, and will set forth in reasonable detail the basis for and manner of determining such compensation.
(d) Determinations and allocations by a Lender for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to subsections (a) or (b), or of the effect of capital maintained pursuant to subsection (c), on its costs of making or maintaining Loans or its obligation to make Loans or participate in Letters of Credit, or on amounts receivable by, or the rate of return to, it in respect of Loans, Letters of Credit or such obligation, and of the additional amounts required to compensate such Lender under this Section 5.01, shall be conclusive, provided that such determinations and allocations are made on a reasonable basis.
Appears in 1 contract
Additional Costs. 1) The Company Borrower shall pay directly to each Funding Party from time to time Bank within ten (10) days of a request for payment under this Section (which request shall be accompanied by a statement setting forth the basis for the request), such amounts as such Funding Party Bank may determine to be necessary to compensate such Funding Party it for any increased costs actually incurred by which such Funding Party that such Funding Party Bank determines are attributable to its making or maintaining of any Eurodollar Advances LIBOR Advance, or its obligation to make convert any Eurodollar Advances under the Operative DocumentsBase Advance to a LIBOR Advance hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such LIBOR Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change thatwhich:
(A1) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Bank under this Agreement or the Operative Documents Notes in respect of any of such Funded Amounts LIBOR Advances (excluding (A) franchise taxes imposed on it or (B) other than changes in the rate of income tax imposed on the overall net income of such Funding Party Bank or of such its Applicable Lending Office, in each case, Office by the jurisdiction in which such Funding Party Bank has its principal office or such Applicable Lending Office); or;
(B2) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Funding Party Bank (including, without limitation, including any of such LIBOR Advances or any deposits referred to in the definition of "Eurodollar LIBOR Rate") " in Section 1.01 hereof), or any commitment Individual 364 Day Facility Commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder)a Bank; or
(C3) imposes any other condition affecting this Agreement or the Operative Documents Notes (or any of such extensions of credit or liabilities) or its Commitments). If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting the effect of the other provisions of the first paragraph of this SECTION 7.5(B)Section, in the event that, by reason of any Regulatory Change, any Funding Party Bank either (i1) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Bank which includes deposits by reference to which the interest rate on Eurodollar Advances LIBOR Rate is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that Bank which includes Eurodollar Advances loans based on the LIBOR Rate or (ii2) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party Bank so elects by notice to the Company Borrower (with a copy to the Administrative Agent), the obligation of such Funding Party Bank to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder LIBOR Advances, as the case may be, shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 10.04 hereof shall be applicable).
3) Without limiting . Determinations and allocations by such Bank for purposes of this Section of the effect of any Regulatory Change pursuant to this Section, on its costs or rate of return of maintaining the foregoing provisions Advances or on amounts receivable by it in respect of the Advances, and the amounts required to compensate such Bank under this SECTION 7.5(BSection, shall be conclusive absent manifest error. However, to the extent Additional Costs relate to a Bank's loans in general and not specifically to a Loan hereunder, such Bank shall use reasonable averaging and attribution methods. In addition, each Bank agrees that, as promptly as practical after it becomes aware of the occurrence of an event or the existence of a condition that would entitle it to exercise its rights under this Section, it will use commercially reasonable efforts to make, fund or maintain the affected Advance through another lending office of such Bank if (a) (but without duplication), as a result thereof the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine additional money that would otherwise be required to be necessary paid in respect of such Advance could be reduced and (b) the making, funding or maintaining of such Advance through such other lending office would not adversely affect such Advance or such Bank. Finally, if a Bank is to compensate suchrequire Borrower to pay Additional Costs under this Section then such Bank must make a demand on Borrower to pay such Additional Costs within ninety (90) days of the later of (1) the date on which such Additional Costs are actually incurred by such Bank, or (2) the date on which such Bank knows, or should have known, that such Additional Costs have been incurred by such Bank.
Appears in 1 contract
Sources: Revolving Credit Agreement (Harvest States Cooperatives)
Additional Costs. 1(a) The Company shall pay directly to each Funding Party Lender from time to time such amounts as such Funding Party Lender may determine to be necessary to compensate such Funding Party Lender for any costs actually incurred by such Funding Party that such Funding Party Lender determines are attributable to its making or maintaining of any Eurodollar Advances Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsLoans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:
(Ai) shall subject any Funding Party Lender (or its Applicable Lending Office for any of such AdvancesLoans) to any tax, duty or other charge in respect of such Funded Amounts Loans or its Notes or changes the basis of taxation of any amounts payable to such Funding Party Lender under the Operative Documents this Agreement or its Notes in respect of any of such Funded Amounts Loans (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Lender or of such Applicable Lending Office, in each case, Office by the jurisdiction in which such Funding Party Lender has its principal office or such Applicable Lending Office); or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, than the Reserve Requirement utilized in the case determination of any Funding Party the Eurodollar Rate for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinsuch Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Base Rate") " in Section 1.01 hereof), or any commitment of such Funding Party Lender (including, without limitation, the Commitments Commitment of such Funding Party Lender hereunder); or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Notes (or any of such extensions of credit or liabilities) or its CommitmentsCommitment. If any Funding Party Lender requests compensation from the Company under this SECTION 7.5(BSection 5.01(a), the Company may, by notice to such Funding Party Lender (with a copy to the Administrative Agent), suspend the obligation of such Funding Party Lender thereafter to make or continue Continue Eurodollar AdvancesLoans, or to convert Convert Base Rate Advances Loans into Eurodollar AdvancesLoans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party Lender to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3b) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company shall pay directly to each Funding Party Lender from time to time on request such amounts as such Funding Party Lender may determine to be necessary to compensate suchsuch Lender (or, without duplication, the bank holding company of which such Lender is a subsidiary) for any increased costs that it determines are attributable to the maintenance by such Lender (or any Applicable Lending Office or such bank holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of any court or governmental or monetary authority (i) following any Regulatory Change or (ii) implementing any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) hereafter issued by any government or governmental or supervisory authority implementing at the national level the Basle Accord, of capital in respect of its Commitment or Loans (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Lender (or any Applicable Lending Office or such bank holding company) to a level below that which such Lender (or any Applicable Lending Office or such bank holding company) could have achieved but for such law, regulation, interpretation, directive or request).
(c) Each Lender shall notify the Company of any event occurring after the date hereof entitling such Lender to compensation under paragraph (a) or (b) of this Section 5.01 as promptly as practicable, but in any event within 45 days, after such Lender obtains actual knowledge thereof; PROVIDED that (i) if any Lender fails to give such notice within 45 days after it obtains actual knowledge of such an event, such Lender shall, with respect to compensation payable pursuant to this Section 5.01 in respect of any costs resulting from such event, only be entitled to payment under this Section 5.01 for costs incurred from and after the date 45 days prior to the date that such Lender does give such notice and (ii) each Lender will designate a different Applicable Lending Office for the Loans of such Lender affected by such event if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the sole opinion of such Lender, be disadvantageous to such Lender, except that such Lender shall have no obligation to designate an Applicable Lending Office located in the United States of America. Each Lender will furnish to the Company a certificate setting forth the basis and amount of each request by such Lender for compensation under paragraph (a) or (b) of this Section 5.01. Determinations and allocations by any Lender for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to paragraph (a) of this Section 5.01, or of the effect of capital maintained pursuant to paragraph (b) of this Section 5.01, on its costs or rate of return of maintaining Loans or its obligation to make Loans, or on amounts receivable by it in respect of Loans, and of the amounts required to compensate such Lender under this Section 5.01, shall be conclusive, PROVIDED that such determinations and allocations are made on a reasonable basis.
Appears in 1 contract
Additional Costs. 1(a) The Company Co-Borrowers shall pay directly to each Funding Party the Bank, from time to time time, within two days of the demand of the Bank, such amounts as such Funding Party the Bank may reasonably determine to be necessary to compensate such Funding Party it for any costs actually incurred by such Funding Party that such Funding Party which the Bank reasonably determines are attributable to its making or maintaining of any Eurodollar Advances or its obligation to make any Eurodollar Advances under the Operative DocumentsLoan or issue any Letter of Credit hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any such Loans or Letters of such Advances Credit or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change that:
which: (Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party the Bank under this Agreement or the Operative Documents Note or any Letter of Credit in respect of any of such Funded Amounts obligations (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or the Bank for any of such Applicable Lending Office, in each case, obligations by the jurisdiction in which such Funding Party the Bank has its principal office or such Applicable Lending Office); or
or (Bii) imposes or modifies any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party the Bank (including, without limitation, including any of such Advances Loans or any deposits referred to in the definition definitions of "Eurodollar RateLIBOR Loans" or ") or any commitment Letters of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunderCredit"); or
or (Ciii) imposes any other condition affecting this Agreement, or the Operative Documents Note (or any of such extensions of credit or liabilities) or its Commitmentsany Letter of Credit and the Bank's obligations with respect thereto. If The Bank will notify the Co-Borrowers of any Funding Party requests event occurring after the date of this Agreement which will entitle the Bank to compensation from the Company under pursuant to this SECTION 7.5(B), the Company may, by notice Section 4.2(a) as promptly as practicable after it obtains knowledge thereof and determines to request such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requestedcompensation.
2(b) Without limiting the effect of the other foregoing provisions of this SECTION 7.5(B)Section 4.2, in the event that, by reason of any Regulatory Change, any Funding Party the Bank either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that the Bank which includes deposits by reference to which the interest rate on Eurodollar Advances LIBOR Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that the Bank which includes Eurodollar Advances LIBOR Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party the Bank so elects by notice to the Company (with a copy to the Administrative Agent)Co-Borrowers, the obligation of such Funding Party the Bank to make or continue, or to convert Base Rate Advances into, Eurodollar Advances LIBOR Loans hereunder shall be suspended until the date such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof Section 4.5 shall be applicable).
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 4.2 (but without duplication), the Company Co-Borrowers shall pay directly to each Funding Party the Bank from time to time on request such amounts as such Funding Party the Bank may reasonably determine to be necessary to compensate suchthe Bank for any costs which it reasonably determines are attributable to the maintenance by it or any of its Affiliates pursuant to any law or regulation of any jurisdiction or any interpretation, directive or request (whether or not having the force of law and whether in effect on the date of this Agreement or thereafter) of any court or governmental or monetary authority, of capital in respect of its Loans or other obligations hereunder (such compensation to include, without limitation, an amount equal to any reduction in return on assets or equity of the Bank to a level below that which it could have achieved but for such law, regulation, interpretation, directive or request). The Bank will notify the Co-Borrowers if it is entitled to compensation pursuant to this Section 4.2(c) as promptly as practicable after it determines to request such compensation.
(d) Determinations and allocations by the Bank for purposes of this Section 4.2 of the effect of any Regulatory Change pursuant to subsections (a) or (b), or of the effect of capital maintained pursuant to subsection (c), on its costs of making or maintaining Loans or of issuing Letters of Credit or its obligation to make Loans or issue Letters of Credit, or on amounts receivable by, or the rate of return to, it in respect of Loans, and of the additional amounts required to compensate the Bank under this Section 4.2, shall be conclusive, absent manifest error, if such determination is made reasonably and in good faith.
Appears in 1 contract
Additional Costs. 1(a) The Company shall pay directly to the Agent for the account of each Funding Party Bank from time to time such amounts as such Funding Party Bank may reasonably determine to be necessary to compensate such Funding Party it for any costs actually incurred by which such Funding Party that such Funding Party Bank determines are attributable to its making or maintaining of any Eurodollar Advances of its Loans or its obligation to make any Eurodollar Advances under the Operative Documents, Loans hereunder or any reduction in any amount receivable by such Funding Party Bank from the Company hereunder or under the Operative Documents Notes in respect of any of such Advances its Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change that:
which: ---------------- (Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to the Agent or such Funding Party Bank by the Company under the Operative Documents in respect of this Agreement or any of such Funded Amounts Note (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Bank or of such its Applicable Lending Office, in each case, Office by the jurisdiction in which such Funding Party Bank has its principal office or such Applicable Lending Office); or
or (Bii) imposes or modifies any reserve, special deposit deposit, minimum capital, capital ratio or similar requirements (other thanrequirements, in or increases the case rate of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) belowsuch requirements, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Bank (including, without limitation, including any of such Advances Bank's Loans or any deposits referred to in the definition of "Eurodollar Rate") LIBOR' in Section 1.01 hereof), or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder)or the Notes; or
or (Ciii) imposes any other condition affecting this Agreement or the Operative Documents Notes (or any of such extensions of credit or liabilities) or its the Commitments. If Notwithstanding the foregoing provisions of this Section 5.01(a), in no event may any Funding Party requests Bank requesting payment of Additional Costs under this Section 5.01 (a) be entitled to payment of any Additional Costs to the extent that such Additional Costs arose with respect to periods prior to the date 18 months prior to the date of the first such request. Each Bank will designate a different Applicable Lending Office for its Loans if such designation will avoid the need for, or reduce the amount of, such compensation from and will not, in the opinion of such Bank, be disadvantageous to such Bank in any material respect. Each Bank will furnish the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent) with a certificate setting forth in reasonable detail the basis and amount of each request for compensation under this Section 5.01(a), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2(b) Without limiting the effect of the other provisions of this SECTION 7.5(BSection 5.01(a) hereof (but without duplication), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) Bank becomes subject to restrictions on the amount of such a any category of liabilities or assets that (relating to any Loan held by it may holdor its funding), then, if such Funding Party Bank so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder following provisions shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate suchapply:
Appears in 1 contract
Sources: Loan Agreement (Coca Cola Bottling Co Consolidated /De/)
Additional Costs. 1(a) The Company Borrower shall pay directly to each Funding Party Lender from time to time such amounts as such Funding Party Lender may determine to be necessary to compensate such Funding Party it for any costs actually incurred by which such Funding Party that such Funding Party Lender determines are attributable to its making or maintaining of any Eurodollar Advances Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsLoans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change thatwhich:
(A) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party under the Operative Documents in respect of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(Bi) imposes or modifies any reserve, special deposit or similar requirements (other than, than the Reserve Requirement utilized in the case determination of any Funding Party the Eurodollar Rate for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinsuch Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, including any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Base Rate") " in Section 1.01 hereof), or any commitment of such Funding Party Lender (including, without limitation, including the Commitments of such Funding Party Lender hereunder); or
(Cii) imposes any other condition affecting the Operative Documents this Agreement or its Notes (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party Lender requests compensation from the Company Borrower under this SECTION 7.5(BSection 5.01(a), the Company Borrower may, by notice to such Funding Party Lender (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter Lender to make or continue Continue Eurodollar AdvancesLoans, or to convert Convert Base Rate Advances Loans into Eurodollar AdvancesLoans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2(b) Without limiting the effect of the other provisions of this SECTION 7.5(B)Section 5.01(a) hereof, in the event that, by reason of any Regulatory Change, any Funding Party Lender either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Lender which includes deposits by reference to which the interest rate on Eurodollar Advances Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that Lender which includes Eurodollar Advances Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party Lender so elects by notice to the Company Borrower (with a copy to the Administrative Agent), the obligation of such Funding Party Lender to make or continueContinue, or to convert Convert Base Rate Advances Loans into, Eurodollar Advances Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable).
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company Borrower shall pay directly to each Funding Party Lender from time to time on request such amounts as such Funding Party Lender may determine to be necessary to compensate suchsuch Lender for any costs which it determines are attributable to the maintenance by such Lender (or any Applicable Lending Office), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law) of any court or governmental or monetary authority (i) following any Regulatory Change or (ii) implementing any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) heretofore or hereafter issued by any government or governmental or supervisory authority, of capital in respect of its Commitments or Loans (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Lender (or any Applicable Lending Office) to a level below that which such Lender (or any Applicable Lending Office) could have achieved but for such law, regulation, interpretation, directive or request).
(d) Each Lender will notify the Borrower of any event occurring after the date of this Agreement that will entitle such Lender to compensation under paragraph (a) or (c) of this Section 5.01 as promptly as practicable, but in any event within 60 days, after such Lender obtains actual knowledge thereof; PROVIDED, however, that if any Lender fails to give such notice within 60 days after it obtains actual knowledge of such an event, such Lender shall, with respect to compensation payable pursuant to this Section 5.01 in respect of any costs resulting from such event, only be entitled to payment under this Section 5.01 for costs incurred from and after the date 60 days prior to the date that such Lender does give such notice; and PROVIDED, FURTHER, that each Lender will designate a different Applicable Lending Office for the Loans of such Lender affected by such event if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the sole opinion of such Lender, be disadvantageous to such Lender, except that such Lender shall have no obligation to designate an Applicable Lending Office located in the United States of America. Each Lender will furnish to the Borrower a certificate setting forth the basis and amount of each request by such Lender for compensation under paragraph (a) or (c) of this Section 5.01. Determinations and allocations by any Lender for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to Section 5.01(a) or (b) hereof, or of the effect of capital maintained pursuant to Section 5.01(c) hereof, on its costs or rate of return of maintaining Loans or its obligation to make Loans, or on amounts receivable by it in respect of Loans, and of the amounts required to compensate such Lender under this Section 5.01, shall be conclusive, PROVIDED that such determinations and allocations are made on a reasonable basis.
Appears in 1 contract
Additional Costs. 1(a) The Company Subject to the requirements of clause (c) of this Section 2.14, each Mortgagor shall pay directly to each Funding Party Participant from time to time such amounts (if any) as such Funding Party Participant may determine to be necessary to compensate such Funding Party Participant for any increase in costs actually incurred by such Funding Party that such Funding Party Participant reasonably determines are attributable to its making or maintaining of any Eurodollar Advances its participation in the Loans or its obligation to make any Eurodollar Advances under the Operative Documentsfunding arrangements utilized in connection with such participations, or any reduction in any amount receivable by such Funding Party under the Operative Documents Participant hereunder in respect of any of such Advances participations or such obligation arrangements (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"“Additional Costs”), in each case resulting from any Regulatory Change that:
(Ai) shall subject imposes any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes tax that is the basis of taxation functional equivalent of any amounts payable to such Funding Party under reserve, special deposit or similar requirement of the Operative Documents in respect of any of such Funded Amounts sort covered by clause (excluding (Aii) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office)below; or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of including any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinReserve Requirement) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party (including, without limitation, any of such Advances or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder)Participant; or
(Ciii) imposes any other condition affecting this Security Agreement or its participation in the Operative Documents Loans (or any of such extensions of credit or liabilities); provided that any Participant which acquires a Loan Certificate pursuant to Section 2.07 (a “Transferee Participant”) or its Commitments. If shall not be entitled to compensation for any Funding Party requests compensation from Additional Costs in excess of the Company Additional Costs that would have been imposed on the Participant on the Closing Date under this SECTION 7.5(B)applicable law in effect on the Closing Date, the Company may, by notice to such Funding Party (with a copy except to the Administrative Agent), suspend the obligation of extent such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either transfer is effected (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or connection with mitigation provisions, (ii) becomes subject at the request of the Borrowers or (iii) in order to restrictions on the amount of such a category of liabilities comply with any change in law or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable)governmental requirement.
3(b) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 2.14 (but without duplication), and subject to the Company requirements of clause (c) of this Section 2.14, each Mortgagor shall pay directly to each Funding Party Participant from time to time on request such amounts (if any) as such Funding Party Participant may determine to be necessary to compensate suchsuch Participant (or, without duplication, the holding company of which such Participant is a subsidiary) for any increase in actual costs that it determines are attributable to the maintenance by such Participant (or such Participant’s lending office or such holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful so long as compliance therewith is standard banking practice in the relevant jurisdiction) of any court or governmental or monetary authority following any Regulatory Change of capital or liquidity requirements in respect of its participation in the Loan Certificates or funding arrangements utilized in connection with such participation; such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Participant (or any lending office or such bank holding company) could have achieved but for such law, regulation, interpretation, directive or request; provided that no Transferee Participant shall be entitled to compensation for any such additional costs or reduction of rate of return on assets or equity attributable to compliance with capital adequacy or liquidity requirements in excess of those that would have applied to the Participant on the Closing Date under applicable law in effect on the Closing Date; except to the extent such transfer is effected (i) in connection with mitigation provisions, (ii) at the request of the Borrower or (iii) in order to comply with any change in law or governmental requirement.
(c) Each Participant shall notify the Borrowers of any event occurring after the date of this Security Agreement entitling such Participant to compensation under paragraph (a) or (b) of this Section 2.14 as promptly as practicable, but in any event within ten days, after such Participant obtains Actual Knowledge thereof; provided that each Participant will use commercially reasonable efforts (at Borrowers’ expense) to mitigate the amount of the additional costs associated with such event, including designating a different lending office for its participation in the Loan if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the sole opinion of such Participant, result in any economic, operational legal or regulatory disadvantage to such Participant. Each Participant will furnish to the Borrowers a written confirmation of such additional costs, which will set forth in reasonable detail (i) the events giving rise to such additional costs, (ii) the basis for determining and allocating such additional costs and (iii) the amount of each request by such Participant for compensation under paragraph (a) or (b) of this Section 2.14 (subject, however, to any limitations such Participant may require in respect of disclosure of confidential information relating to its capital structure), together with a statement that the determinations and allocations made in respect of the additional costs comply with the provisions of this Section 2.14, including as provided in the last proviso of this paragraph (c). Determinations and allocations by any Participant for purposes of this Section 2.14 of the effect of any Regulatory Change pursuant to paragraph (a) of this Section 2.14, or of the effect of capital maintained pursuant to paragraph (b) of this Section 2.14, on its costs or rate of return of maintaining its participation in the Loans or its funding thereof, or on amounts receivable by it in respect of its participation, and of the amounts required to compensate such Participant under this Section 2.14, shall be conclusive absent manifest error, provided that such determinations and allocations are made on a reasonable and non-discriminatory basis and, in the case of allocations, are made fairly.
Appears in 1 contract
Additional Costs. 1(a) The Company shall pay directly to each Funding Party Lender from time to time such amounts as such Funding Party Lender may determine to be necessary to compensate such Funding Party Lender for any costs actually incurred by such Funding Party that such Funding Party Lender determines are attributable to its making or maintaining of any Eurodollar Advances Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsLoans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS")obligation, resulting from any Regulatory Change that:
(Ai) shall subject any Funding Party Lender (or its Applicable Lending Office for any of such AdvancesLoans) to any tax, duty or other charge in respect of such Funded Amounts Loans or changes its Revolving Credit Note or change the basis of taxation of any amounts payable to such Funding Party Lender under the Operative Documents this Agreement or its Revolving Credit Note in respect of any of such Funded Amounts Loans (excluding (A) franchise taxes imposed on it or (B) changes in the rate taxation of tax on the overall net income of such Funding Party Lender or of such Applicable Lending Office, in each case, Office by the jurisdiction in which such Funding Party Lender has its principal office or such Applicable Lending Office), provided that this Section 5.01(a)(i) shall not apply to any amounts excluded pursuant to the proviso to Section 5.06(a) hereof; or
(Bii) imposes or modifies any reserve, special deposit or similar requirements (other than, than the Reserve Requirement utilized in the case determination of any Funding Party the Eurodollar Rate for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinsuch Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Base Rate") " in Section 1.01 hereof), or any commitment of such Funding Party Lender (including, without limitation, the Commitments Commitment of such Funding Party Lender hereunder); or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Revolving Credit Note (or any of such extensions of credit or liabilities) or its CommitmentsCommitment. If any Funding Party Lender requests compensation from the Company under this SECTION 7.5(BSection 5.01(a), the Company may, by notice to such Funding Party Lender (with a copy to the Administrative Agent), suspend the obligation of such Funding Party Lender thereafter to make or continue Continue Eurodollar AdvancesLoans, or to convert Convert Base Rate Advances Loans into Eurodollar AdvancesLoans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable), PROVIDED provided that such suspension shall not affect the right of such Funding Party Lender to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable).
3b) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), the Company shall pay directly to each Funding Party Lender from time to time on request such amounts as such Funding Party Lender may determine to be necessary to compensate suchsuch Lender (or, without duplication, the bank holding company of which such Lender is a subsidiary) for any costs that it determines are attributable to the maintenance by such Lender (or any Applicable Lending Office or such bank holding company), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of any court or Governmental Authority (i) following any Regulatory Change or (ii) implementing any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) hereafter issued by any Governmental Authority implementing at the national level the Basle Accord, of capital in respect of its Commitment or Loans (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Lender (or any Applicable Lending Office or such bank holding company) to a level below that which such Lender (or any Applicable Lending Office or such bank holding company) could have achieved but for such law, regulation, interpretation, directive or request).
(c) Each Lender shall notify the Company of any event occurring after the date hereof entitling such Lender to compensation under paragraph (a) or (b) of this Section 5.01 as promptly as practicable, but in any event within 45 days, after such Lender obtains actual knowledge thereof; provided that (i) if any Lender fails to give such notice within 45 days after it obtains actual knowledge of such an event, such Lender shall, with respect to compensation payable pursuant to this Section 5.01 in respect of any costs resulting from such event, only be entitled to payment under this Section 5.01 for costs incurred from and after the date 45 days prior to the date that such Lender does give such notice and (ii) each Lender will designate a different Applicable Lending Office for the Loans of such Lender affected by such event if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the sole opinion of such Lender, be disadvantageous to such Lender, except that such Lender shall have no obligation to designate an Applicable Lending Office located in the United States of America. Each Lender will furnish to the Company a certificate setting forth the basis and amount of each request by such Lender for compensation under paragraph (a) or (b) of this Section 5.01. Determinations and allocations by any Lender for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to paragraph (a) of this Section 5.01, or of the effect of capital maintained pursuant to paragraph (b) of this Section 5.01, on its costs or rate of return of maintaining Loans or its obligation to make Loans, or on amounts receivable by it in respect of Loans, and of the amounts required to compensate such Lender under this Section 5.01, shall be conclusive, provided that such determinations and allocations are made on a reasonable basis.
Appears in 1 contract
Sources: Credit Agreement (Iridium World Communications LTD)
Additional Costs. 1(a) The Company Borrower shall pay directly to each Funding Party Lender from time to time such amounts as such Funding Party Lender may determine to be necessary to compensate such Funding Party it for any costs actually incurred by which such Funding Party that such Funding Party Lender determines are attributable to its making or maintaining of any Eurodollar Advances Loans or its obligation to make any Eurodollar Advances under the Operative DocumentsLoans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change thatwhich:
(A) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party under the Operative Documents in respect of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(Bi) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, including any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Base Rate") " in Section 1.01 hereof), or any commitment of such Funding Party Lender (including, without limitation, including the Commitments of such Funding Party Lender hereunder) that is not otherwise included in the determination of the Eurodollar Rate (including the Statutory Reserve Rate utilized in such determination); or
(Cii) imposes on such Lender any other condition affecting the Operative Documents this Agreement or its Notes (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party Lender requests compensation from the Company Borrower under this SECTION 7.5(BSection 5.01(a), the Company Borrower may, by notice to such Funding Party Lender (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter Lender to make or continue Continue Eurodollar AdvancesLoans, or to convert Convert Base Rate Advances Loans into Eurodollar AdvancesLoans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable).
3(b) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), if any Lender determines that any Regulatory Change regarding capital requirements has or would have the Company shall pay directly effect of reducing the rate of return on such Lender's capital or on the capital of such Lender's holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, to each Funding Party a level below that which such Lender or such Lender's holding company would have achieved but for such Regulatory Change (taking into consideration such Lender's policies and the policies of such Lender's holding company with respect to capital adequacy), then from time to time on request the Borrower will pay to such Lender such additional amount or amounts as will compensate such Funding Party may determine Lender or such Lender's holding company for any such reduction suffered.
(c) Each Lender will provide written notice to the Borrower of any event occurring after the date of this Agreement that will entitle such Lender to compensation under CREDIT AGREEMENT 50 paragraph (a) or (b) of this Section 5.01 as promptly as practicable, but in any event within 30 days, after such Lender obtains actual knowledge thereof; PROVIDED, however, that if any Lender fails to give such notice within 30 days after it obtains actual knowledge of such an event, such Lender shall, with respect to compensation payable pursuant to this Section 5.01 in respect of any costs resulting from such event, only be necessary entitled to payment under this Section 5.01 for costs incurred from and after the date 30 days prior to the date that such Lender does give such notice. Each Lender will furnish to the Borrower (with a copy to the Administrative Agent) a certificate setting forth in reasonable detail the basis and amount of each request by such Lender for compensation under paragraph (a) or (b) of this Section 5.01. Determinations and allocations by any Lender for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to Section 5.01(a) hereof, or of the effect of capital maintained pursuant to Section 5.01(b) hereof, on its costs or rate of return of maintaining Loans or its obligation to make Loans, or on amounts receivable by it in respect of Loans, and of the amounts required to compensate suchsuch Lender under this Section 5.01, shall be conclusive in the absence of manifest error, PROVIDED that such determinations and allocations are made on a reasonable basis.
Appears in 1 contract
Additional Costs. 1(a) The Subject to Section 13.6, the Company shall pay directly to Agent, on demand for the account of each Funding Party Bank from time to time such amounts as such Funding Party Bank may determine to be necessary to compensate such Funding Party it for any costs actually incurred by such Funding Party that Bank which such Funding Party Bank determines are attributable to its making or maintaining of any Eurodollar Advances Loan or any Competitive Loan hereunder or its obligation to make any Eurodollar Advances under the Operative Documentssuch Loan hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Bank hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), in each case resulting from any Regulatory Change thatwhich:
(Ai) shall subject subjects such Bank (or makes it apparent that such Bank is subject) to any Funding Party tax (including without limitation any United States interest equalization tax), levy, impost, duty, charge or fee (collectively, "Taxes"), or any deduction or withholding for any Taxes on or from the payment due under any Eurodollar Loan or any Competitive Loan or other amounts due hereunder, other than income and franchise taxes of the jurisdiction (or any subdivision thereof) in which such Bank has an office or its Applicable Lending Office for any of such AdvancesOffice; or
(ii) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Bank under the Operative Documents this Agreement or its Notes in respect of any of such Funded Amounts Loans (excluding (A) franchise other than changes which affect taxes measured by or imposed on it or (B) changes in the rate of tax on the overall net income or franchise taxes of such Funding Party Bank or of such its Applicable Lending Office, in each case, Office for any of such Loans by the jurisdiction (or any subdivision thereof) in which such Funding Party Bank has its principal an office or such Applicable Lending Office); or
(Biii) imposes or modifies or increases or deems applicable any reserve, special deposit or similar requirements (other thanincluding, in without limitation, any such requirement imposed by the case Board of any Funding Party for any period as to which Governors of the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to thereinFederal Reserve System) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Bank or loans made by such Bank, or against any other funds, obligations or other property owned or held by such Bank (including, without limitation, including any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Base Rate"" in Section 1.1 hereof) and such Bank actually incurs such additional costs. Each Bank (if so requested by the Company through Agent) will designate a different available Applicable Lending Office for the Eurodollar Loans or any commitment the Competitive Loans of such Funding Party (includingBank or take such other action as the Company may request if such designation or action will avoid the need for, without limitationor reduce the amount of, such compensation and will not, in the Commitments sole opinion of such Funding Party hereunderBank, be disadvantageous to such Bank (provided that such Bank shall have no obligation so to designate an Applicable Lending Office for Eurodollar Loans located in the United States of America). Each Bank will furnish the Company with a statement setting forth the basis and amount of each request by such Bank for compensation under this Section 6.1(a); orsubject to Section 6.8, such certificate shall be conclusive, absent manifest error, and may be prepared using any reasonable averaging and attribution methods.
(C) imposes any other condition affecting the Operative Documents (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party requests compensation from the Company under this SECTION 7.5(B), the Company may, by notice to such Funding Party (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2b) Without limiting the effect of the other foregoing provisions of this SECTION 7.5(B)Section 6.1, in the event that, by reason of any Regulatory Change, any Funding Party Bank either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Bank which includes deposits by reference to which the interest rate on Eurodollar Advances Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that Bank which includes Eurodollar Advances Loans or Competitive Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party Bank so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party Bank to make Eurodollar Loans or continueCompetitive Loans, or to convert Base Rate Advances intoas the case may be, Eurodollar Advances hereunder shall be suspended until the date such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 6.4 hereof shall be applicable).
3(c) Without limiting Good faith determinations and allocations by any Bank for purposes of this Section 6.1 of the effect of any Regulatory Change on its costs of maintaining its obligations to make Loans or of making or maintaining Loans or on amounts receivable by it in respect of Loans, and of the foregoing provisions additional amounts required to compensate such Bank in respect of any Additional Costs, shall be conclusive, absent manifest error.
(d) The Company's obligation to pay Additional Costs and compensation with regard to each Eurodollar Loan and each Competitive Loan shall survive termination of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to each Funding Party from time to time on request such amounts as such Funding Party may determine to be necessary to compensate suchAgreement.
Appears in 1 contract
Additional Costs. 1(a) The Company Borrower shall pay directly to each Funding Party Lender from time to time such amounts as such Funding Party Lender may determine to be necessary to compensate such Funding Party it for any costs actually incurred by which such Funding Party that such Funding Party Lender determines are attributable to its making or maintaining of any Eurodollar Advances Loans or CREDIT AGREEMENT its obligation to make any Eurodollar Advances under the Operative DocumentsLoans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change thatwhich:
(A) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party under the Operative Documents in respect of any of such Funded Amounts (excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party or of such Applicable Lending Office, in each case, by the jurisdiction in which such Funding Party has its principal office or such Applicable Lending Office); or
(Bi) imposes or modifies any reserve, special deposit or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender (including, without limitation, including any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Base Rate") " in Section 1.01 hereof), or any commitment of such Funding Party Lender (including, without limitation, including the Commitments of such Funding Party Lender hereunder) that is not otherwise included in the determination of the Eurodollar Rate (including the Statutory Reserve Rate utilized in such determination); or
(Cii) imposes on such Lender any other condition affecting the Operative Documents this Agreement or its Notes (or any of such extensions of credit or liabilities) or its Commitments. If any Funding Party Lender requests compensation from the Company Borrower under this SECTION 7.5(BSection 5.01(a), the Company Borrower may, by notice to such Funding Party Lender (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter Lender to make or continue Continue Eurodollar AdvancesLoans, or to convert Convert Base Rate Advances Loans into Eurodollar AdvancesLoans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2) Without limiting the effect of the other provisions of this SECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Funding Party either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that includes deposits by reference to which the interest rate on Eurodollar Advances is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that includes Eurodollar Advances or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Funding Party so elects by notice to the Company (with a copy to the Administrative Agent), the obligation of such Funding Party to make or continue, or to convert Base Rate Advances into, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) Section 5.04 hereof shall be applicable).
3(b) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 5.01 (but without duplication), if any Lender determines that any Regulatory Change regarding capital requirements has or would have the Company shall pay directly effect of reducing the rate of return on such Lender's capital or on the capital of such Lender's holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, to each Funding Party a level below that which such Lender or such Lender's holding company would have achieved but for such Regulatory Change (taking into consideration such Lender's policies and the policies of such Lender's holding company with respect to capital adequacy), then from time to time on request the Borrower will pay to such Lender such additional amount or amounts as will compensate such Funding Party may determine Lender or such Lender's holding company for any such reduction suffered.
(c) Each Lender will provide written notice to the Borrower of any event occurring after the date of this Agreement that will entitle such Lender to compensation under paragraph (a) or (b) of this Section 5.01 as promptly as practicable, but in any event within 30 days, after such Lender obtains actual knowledge thereof; PROVIDED, however, that if any Lender fails to give such notice within 30 days after it obtains actual knowledge of such an event, such Lender shall, with respect to compensation payable pursuant to this Section 5.01 in respect of any costs resulting from such event, only be necessary entitled to payment under this Section 5.01 for costs incurred from and after the date 30 days prior to the date that such Lender does give such notice. Each Lender will furnish to the Borrower (with a copy to the Administrative Agent) a certificate setting forth in reasonable detail the basis and amount of each request by such Lender for compensation under paragraph (a) or (b) of this Section 5.01. Determinations and allocations by any Lender for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to Section 5.01(a) hereof, or of the effect of capital maintained pursuant to Section 5.01(b) hereof, CREDIT AGREEMENT on its costs or rate of return of maintaining Loans or its obligation to make Loans, or on amounts receivable by it in respect of Loans, and of the amounts required to compensate suchsuch Lender under this Section 5.01, shall be conclusive in the absence of manifest error, PROVIDED that such determinations and allocations are made on a reasonable basis.
Appears in 1 contract
Additional Costs. 1(a) The Company Borrower shall pay directly to each Funding Party Bank from time to time on demand such amounts as such Funding Party Bank may determine to be necessary to compensate such Funding Party it for any costs actually incurred by which such Funding Party that such Funding Party Bank determines are attributable to its making or maintaining of any Eurodollar Advances Fixed Rate Loans under this Agreement or its Notes or its obligation to make any Eurodollar Advances under the Operative Documentssuch Loans hereunder, or any reduction in any amount receivable by such Funding Party Bank hereunder (including any amount receivable under the Operative Documents this Section 3.01) in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTSAdditional Costs"), resulting from any Regulatory Change that:
which: (Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Bank under the Operative Documents this Agreement or its Notes (including any amounts payable under this Section 3.01) in respect of any of such Funded Amounts Loans (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Bank or of its Lending Office for any of such Applicable Lending Office, in each case, Loans by the jurisdiction in which such Funding Party Bank has its principal office or such Applicable Lending Office); or
or (Bii) imposes or modifies any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Bank (including, without limitation, including any of such Advances Loans or any deposits referred to in the definition of "Eurodollar Fixed Base Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder" in Section 1.01); or
or (Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Notes (or any of such extensions of credit or liabilities). Each Bank will notify the Borrower of any event occurring after the date of this Agreement which will entitle such Bank to compensation pursuant to this Section 3.01(a) or its Commitmentsas promptly as practicable after it obtains knowledge thereof and determines to request such compensation. Any demand for payment under this Section 3.01(a) may include on a prospective basis any amounts required to be deducted from such payment to the extent that such amounts would be reimbursable hereunder when incurred. If any Funding Party Bank requests compensation from the Company Borrower under this SECTION 7.5(BSection 3.01(a), or under Section 3.01(c), the Company Borrower may, by notice to such Funding Party Bank (with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter to make or continue Eurodollar Advances, or to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof shall be applicable), PROVIDED require that such suspension shall not affect Bank's Loans of the right of type with respect to which such Funding Party to receive the compensation so requestedis requested be prepaid in accordance with Section 2.05 or be converted in accordance with Section 3.04.
2(b) Without limiting the effect of the other foregoing provisions of this SECTION 7.5(B)Section 3.01, in the event that, by reason of any Regulatory Change, any Funding Party Bank either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Bank which includes deposits by reference to which the interest rate on Eurodollar Advances or then outstanding Quoted Rate Loans is determined as provided in this Master Agreement or in the lending Bank's offer with respect to a Quoted Rate Loan, or a category of extensions of credit or other assets of such Funding Party that Bank which includes Eurodollar Advances or then outstanding Quoted Rate Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party Bank so elects by notice to the Company Borrower (with a copy to the Administrative Agent), the obligation of such Funding Party Bank to make or continuerenew, or and to convert Base Rate Advances Loans of any other type into, Eurodollar Advances Loans of such type hereunder shall be suspended until the date such Regulatory Change ceases to be in effect (and all Loans of such type held by such Bank then outstanding shall be, at Borrower's election, prepaid in which case the provisions of SECTION 7.5(E) hereof shall be applicableaccordance with Section 2.05 or converted in accordance with Section 3.04).
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) Section 3.01 (but without duplication), the Company Borrower shall pay directly to each Funding Party Bank from time to time on request such amounts as such Funding Party Bank may determine to be necessary to compensate suchsuch Bank for any costs which it determines are attributable to the maintenance, by it or any of its affiliates pursuant to any law or regulation of any jurisdiction or any interpretation, directive or request (whether or not having the force of law and whether in effect on the date of this Agreement or thereafter) of any court or governmental or monetary authority, of capital in respect of its Loans hereunder or its obligation to make Loans hereunder (such compensation to include, without limitation, an amount equal to any reduction in return on assets or equity of such Bank to a level below that which it could have achieved but for such law, regulation, interpretation, directive or request). Each Bank will notify the Borrower if it is entitled to compensation pursuant to this Section 3.01(c) as promptly as practicable after it determines to request such compensation.
(d) Determinations and allocations by a Bank for purposes of this Section 3.01 of the effect of any Regulatory Change pursuant to subsections (a) or (b), or of the effect of capital maintained pursuant to subsection (c), on its costs of making or maintaining Loans or its obligation to make Loans, or on amounts receivable by, or the rate of return to, it in respect of Loans or such obligation, and of the additional amounts required to compensate such Bank under this Section 3.01, shall be conclusive, provided that such determinations and allocations are made on a demonstrably reasonable basis.
Appears in 1 contract
Additional Costs. 1(a) The Company Borrowers shall pay directly to each Funding Party Lender from time to time within five Banking Days of demand therefore such amounts as such Funding Party Lender may reasonably determine to be necessary to compensate such Funding Party it for any costs actually incurred by which such Funding Party that such Funding Party Lender determines are attributable to its making or maintaining of any Eurodollar Advances Loans under this Agreement or its Note or its obligation to make any Eurodollar Advances under the Operative Documentssuch Loans hereunder, or any reduction in any amount receivable by such Funding Party under the Operative Documents Lender hereunder in respect of any of such Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change that:
which: (Ai) shall subject any Funding Party (or its Applicable Lending Office for any of such Advances) to any tax, duty or other charge in respect of such Funded Amounts or changes the basis of taxation of any amounts payable to such Funding Party Lender under the Operative Documents this Agreement or its Note in respect of any of such Funded Amounts Loans (excluding (A) franchise other than taxes imposed on it or (B) changes in the rate of tax on the overall net income of such Funding Party Lender or of its Lending Office for any of such Applicable Lending Office, in each case, Loans by the jurisdiction in which such Funding Party Lender has its principal office or such Applicable Lending Office); or
or (Bii) imposes or modifies any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than, in the case of any Funding Party for any period as to which the Company is required to pay any amount under PARAGRAPH 5) below, the reserves and "Eurocurrency liabilities" under Regulation D referred to therein) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Funding Party Lender; or (including, without limitation, any of such Advances or any deposits referred to in the definition of "Eurodollar Rate") or any commitment of such Funding Party (including, without limitation, the Commitments of such Funding Party hereunder); or
(Ciii) imposes any other condition affecting the Operative Documents this Agreement or its Note (or any of such extensions of credit or liabilities). Each Lender will notify the Borrowers of any event occurring after the date of this Agreement which will entitle such Lender to compensation pursuant to this section 3.01(a) or its Commitmentsas promptly as practicable after it obtains knowledge thereof and determines to request such compensation. If any Funding Party Lender requests compensation from the Company Borrowers under this SECTION 7.5(Bsection 3.01(a), or under section 3.01(c), the Company Borrowers may, by notice to such Funding Party (Lender with a copy to the Administrative Agent), suspend the obligation of such Funding Party thereafter Lender to make or continue Eurodollar Advances, or Loans of the type with respect to convert Base Rate Advances into Eurodollar Advances, until the Regulatory Change giving rise to which such request ceases to be in effect compensation is requested (in which case the provisions of SECTION 7.5(E) hereof section 3.04 shall be applicable), PROVIDED that such suspension shall not affect the right of such Funding Party to receive the compensation so requested.
2(b) Without limiting the effect of the other foregoing provisions of this SECTION 7.5(B)section 3.01, in the event that, by reason of any Regulatory Change, any Funding Party Lender either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Funding Party that Lender which includes deposits by reference to which the interest rate on Eurodollar Advances Loans is determined as provided in this Master Agreement or a category of extensions of credit or other assets of such Funding Party that Lender which includes Eurodollar Advances Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that which it may hold, then, if such Funding Party Lender so elects by notice to the Company (Borrowers with a copy to the Administrative Agent), the obligation of such Funding Party Lender to make or continue, or to convert Base Rate Advances into, Eurodollar Advances Loans of such type hereunder shall be suspended until the date such Regulatory Change ceases to be in effect (in which case the provisions of SECTION 7.5(E) hereof section 3.04 shall be applicable).
3(c) Without limiting the effect of the foregoing provisions of this SECTION 7.5(B) section 3.01 (but without duplication), the Company Borrowers shall pay directly to each Funding Party Lender from time to time on within five Banking Days of request therefore such amounts as such Funding Party Lender may determine to be necessary to compensate suchsuch Lender for any costs which it determines are attributable to the maintenance by the Lender or its bank holding company or any of its Affiliates, pursuant to any law or regulation of any jurisdiction or any interpretation, directive or request (whether or not having the force of law) of any court or governmental or monetary authority, whether in effect on the date of this Agreement or thereafter, of capital in respect of its Loans hereunder or its obligation to make Loans hereunder (such compensation to include, without limitation, an amount equal to any reduction in return on assets or equity of such Lender or its bank holding company or any of its Affiliates to a level below that which it could have achieved but for such law, regulation, interpretation, directive or request). Each Lender will notify the Borrowers if such Lender is entitled to compensation pursuant to this section 3.01(c) as promptly as practicable afteR it determines to request such compensation.
(d) Determinations and allocations by a Lender for purposes of this section 3.01 of the effect of any RegulatorY Change pursuant to subsections (a) or (b), or of the effect of capital maintained pursuant to subsection (c), on its costs of making or maintaining Loans or its obligation to make Loans, or on amounts receivable by, or the rate of return to, it in respect of Loans or such obligation, and of the additional amounts required to compensate such Lender under this section 3.01, shall be conclusive absent manifest error, provided that such determinations and allocations are made on a reasonable basis. Each Lender demanding payment from the Borrowers pursuant to this section 3.01 shall furnish to the Borrowers at the time of such demand a statement showing the basiS for and the method of calculation of such demand.
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