Additional Costs. Borrower shall pay directly to each 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 Bank may determine to be necessary to compensate it for any increased costs which such Bank determines are attributable to its making or maintaining any LIBOR Advance, or its obligation to convert any Base Advance to a LIBOR Advance hereunder, or any reduction in any amount receivable by such 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 Costs"), resulting from any Regulatory Change which: (1) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the Notes in respect of any of such LIBOR Advances (other than changes in the rate of income tax imposed on such Bank or its Applicable Lending Office by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office); (2) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances or any deposits referred to in the definition of "LIBOR Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment of a Bank; or (3) imposes any other condition affecting this Agreement or the Notes (or any of such extensions of credit or liabilities). Without limiting the effect of the provisions of the first paragraph of this Section, in the event that, by reason of any Regulatory Change, any Bank either (1) 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 Bank which includes deposits by reference to which the LIBOR Rate is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate or (2) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to Borrower (with a copy to Administrative Agent), the obligation of such Bank to make or continue, or to convert Base Advances into, 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 10.04 hereof shall be applicable). 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 Advances or on amounts receivable by it in respect of the Advances, and the amounts required to compensate such Bank under this Section, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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. Borrower (a) The Co-Borrowers shall pay directly to each Bank the Bank, from time to time, within ten (10) two days of a request for payment under this Section (which request shall be accompanied by a statement setting forth the basis for demand of the request)Bank, such amounts as such the Bank may reasonably determine to be necessary to compensate it for any increased costs which such the Bank reasonably determines are attributable to its making or maintaining any LIBOR Advance, or its obligation to convert make any Base Advance to a LIBOR Advance Loan or issue any Letter of Credit hereunder, or any reduction in any amount receivable by such the Bank hereunder in respect of any such Loans or Letters of such LIBOR Advances Credit or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting from any Regulatory Change which:
: (1i) changes the basis of taxation of any amounts payable to such the Bank under this Agreement or the Notes Note or any Letter of Credit in respect of any of such LIBOR Advances obligations (other than changes in the rate of income tax taxes imposed on the overall net income of the Bank for any of such Bank or its Applicable Lending Office obligations by the jurisdiction in which such the Bank has its principal office or such Applicable Lending Office);
; or (2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such the Bank (including any LIBOR Advances of such Loans or any deposits referred to in the definition definitions of "LIBOR RateLoans" in Section 1.01 hereofor "Letters of Credit"), ; or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition affecting this Agreement Agreement, or the Notes Note (or any of such extensions of credit or liabilities)) or any Letter of Credit and the Bank's obligations with respect thereto. The Bank will notify the Co-Borrowers of any event occurring after the date of this Agreement which will entitle the Bank to compensation pursuant to this Section 4.2(a) as promptly as practicable after it obtains knowledge thereof and determines to request such compensation.
(b) Without limiting the effect of the foregoing provisions of the first paragraph of this SectionSection 4.2, in the event that, by reason of any Regulatory Change, any the Bank either (1i) 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 the Bank which includes deposits by reference to which the interest rate on LIBOR Rate Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such the Bank which includes loans based on the LIBOR Rate Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such the Bank so elects by notice to Borrower (with a copy to Administrative Agent)the Co-Borrowers, the obligation of such the Bank to make or continue, or to convert Base Advances into, LIBOR Advances, as the case may be, Loans hereunder shall be suspended until the date such Regulatory Change ceases to be in effect (in which case the provisions of Section 10.04 hereof 4.5 shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this Section 4.2 (but without duplication), the Co-Borrowers shall pay to the Bank from time to time on request such amounts as the Bank may reasonably determine to be necessary to compensate the 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 such the Bank for purposes of this Section 4.2 of the effect of any Regulatory Change pursuant to this Sectionsubsections (a) or (b), or of the effect of capital maintained pursuant to subsection (c), on its costs of making or rate maintaining Loans or of return issuing Letters of maintaining the Advances Credit or its obligation to make Loans or issue Letters of Credit, or on amounts receivable by by, or the rate of return to, it in respect of the AdvancesLoans, and of the additional amounts required to compensate such the Bank under this SectionSection 4.2, shall be conclusive 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) as a result thereof the additional money that would otherwise be required to be 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 such determination is to require 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 Bankmade reasonably and in good faith.
Appears in 1 contract
Additional Costs. Borrower (a) The Transferor shall pay directly to each Bank within ten (10) days the Company from time to time on demand of a request for payment under this Section (which request shall be accompanied by a statement setting forth the basis for the request), Company such amounts as such Bank the Company may reasonably determine to be necessary to compensate it for any increased increase in costs which such Bank the Company determines are attributable to its making a Transfer or maintaining any LIBOR Advance, Tranche under this Agreement or its obligation to convert make any Base Advance to a LIBOR Advance such Transfer or reinvestment hereunder, or any reduction in any amount receivable by such Bank the Company hereunder in respect of any of such LIBOR Advances Tranche or such obligation (such increases in costs costs, payments and reductions in amounts receivable being herein called "Additional ---------- Costs"), ) resulting from any Regulatory Change which:
which (1i) changes the method or ----- basis of taxation of (A) any amounts payable to such Bank the Company under this Agreement or the Notes in respect of any of such LIBOR Advances Tranche or (other than changes in the rate of income tax imposed on B) such Bank or its Applicable Lending Office amounts when considered together with any amounts to be paid by the jurisdiction Company in which respect of its commercial paper notes relating to such Bank has its principal office or such Applicable Lending Office);
Tranche, (2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank the banks that are parties to the Liquidity Facility or (including any LIBOR Advances or any deposits referred to in the definition of "LIBOR Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition affecting this Agreement or the Notes (or any of such extensions of credit or liabilities). The Company will notify the Transferor of any event that will entitle the Company to compensation pursuant to this Section 8.3(a) as promptly as practicable after it obtains knowledge thereof.
(b) Without limiting the effect of the foregoing provisions of this Section 8.3 (but without duplication), the first paragraph of this Section, in Transferor shall pay to the event that, by reason of any Regulatory Change, any Bank either (1) incurs Additional Costs based Company from time to time on or measured by the excess above a specified level demand of the amount of a category of deposits or other liabilities of Company such Bank which includes deposits by reference amounts as the Company may reasonably determine to be necessary to compensate it for any costs which the LIBOR Rate is determined as provided in Company determines are attributable to its making a Transfer or maintaining any Tranche under this Agreement or a category its obligation to make any transfers or reinvestments hereunder, in respect of extensions any amount of credit capital maintained by the banks that are parties to the Liquidity Facility pursuant to any law or other assets 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 or in respect of any costs or expenses incurred by the Company under the Liquidity Facility. The Company will notify the Transferor if the Company is entitled to compensation pursuant to this Section 8.3(b) as promptly as practicable after it obtains knowledge of such Bank which includes loans based on the LIBOR Rate event or condition.
(2c) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to Borrower (with a copy to Administrative Agent), the obligation of such Bank to make or continue, or to convert Base Advances into, 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 10.04 hereof shall be applicable). Determinations and allocations by such Bank the Company for purposes of this Section 8.3 shall be con- clusive, provided that such determinations and allocations are made in good faith and on a reasonable basis, reasonable evidence (including an explanation of the effect of any applicable Regulatory Change pursuant to this Section, on its costs or rate and an accounting for any amounts demanded) of return of maintaining the Advances or on amounts receivable by it in respect of the Advances, and the amounts required to compensate such Bank under this Section, which shall be conclusive absent manifest error. However, provided to the extent Additional Costs relate Transferor upon request.
(d) Anything in this Section 8.3 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) as a result thereof the additional money that would otherwise be required to be 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. Finallycontrary notwithstanding, if a Bank is to require Borrower to pay Additional Costs the Company enters into agreements for the transfer of interests in receivables from Other Transferors, the Company shall allocate the liability for any amounts under this Section then 8.3 ("Section 8.3 Costs") to the ----------------- Transferor and each Other Transferor which is attributable to the Transferor, which amounts shall be paid by the Transferor or to the Other Transferors; and provided, further, that if 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 Section 8.3 Costs are actually incurred by attributable to the -------- ------- Transferor and not attributable to any Other Transferor, the Transferor shall be solely liable for such BankSection 8.3 Costs or if such Section 8.3 Costs are attributable to Other Transferors and not attributable to the Transferor, or (2) the date on which such Bank knows, or should have known, that Other Transferors shall be solely liable for such Additional Costs have been incurred by such Bank.Section 8.3
Appears in 1 contract
Sources: Receivables Transfer Agreement (Georgia Gulf Corp /De/)
Additional Costs. Borrower (a) The Company shall pay directly to each 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), from time to time such amounts as such Bank may determine to be necessary to compensate it such Bank for any increased costs which that such Bank determines are attributable to its making or maintaining of any LIBOR Advance, Eurodollar Loans or Fixed Rate Loans or its obligation to convert make any Base Advance to a LIBOR Advance Eurodollar Loans or Fixed Rate Loans hereunder, or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR 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 whichthat:
(1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the its Notes in respect of any of such LIBOR Advances (other than changes in the rate of income tax taxes imposed on or measured by the overall net income of such Bank or of its Applicable Lending Office by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);; or
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than the Reserve Requirement utilized in the determination of the Eurodollar Rate for such Loan) relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including including, without limitation, any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Eurodollar Base Rate" in Section 1.01 hereof), or any Individual 364 Day Facility commitment of such Bank hereunder (including, without limitation, the Commitment of a such Bank); or
(3iii) imposes any other condition affecting this Agreement or its Notes or its Commitment. If any Bank requests compensation from the Notes Company under this Section 5.01(a), the Company may, by notice to such Bank (or any with a copy to the Agent), suspend the obligation of such extensions Bank thereafter to make or Continue Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar Loans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of credit or liabilitiesSection 5.04 hereof shall be applicable). , provided that such suspension shall not affect the right of such Bank to receive the compensation so requested.
(b) Without limiting the effect of the provisions of the first paragraph (a) of this SectionSection 5.01, in the event that, by reason of any Regulatory Change, any Bank either (1i) 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 Bank which that includes deposits by reference to which the LIBOR interest rate on Eurodollar Loans or Fixed Rate Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which that includes loans based on the LIBOR Eurodollar Loans or Fixed Rate Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which that it may hold, then, if such Bank so elects by notice to Borrower the Company (with a copy to the Administrative Agent), the obligation of such Bank to make Eurodollar Loans or continue, or to convert Base Advances into, LIBOR Advances, Fixed Rate Loans as the case may be, 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 10.04 hereof 5.04).
(c) Without limiting the effect of the foregoing provisions of this Section 5.01 (but without duplication), the Company shall pay directly to each Bank from time to time on request such amounts as such Bank may determine to be applicable). Determinations and allocations necessary to compensate such 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 the effect of any Regulatory Change pursuant to this Section, on its costs or rate of return of maintaining the Advances or on amounts receivable by it in respect of the Advances, Capital Measurement and the amounts required to compensate such Bank under this Section, 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 thatCapital Standards" dated July 1988, as promptly as practical after it becomes aware of the occurrence of an event amended, modified and supplemented and in effect from time to time 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) as a result thereof the additional money that would otherwise be required to be 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 require 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 Bankany replacement thereof.
Appears in 1 contract
Sources: Credit Agreement (Enhance Financial Services Group Inc)
Additional Costs. (a) The Borrower shall pay directly within five (5) Business Days of the request therefor to each 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 Agent for the request), account of such Bank from time to time such amounts as such Bank may determine to be necessary to compensate it for any increased costs incurred by such Bank which such Bank determines are attributable to its making or maintaining of any LIBOR Advance, Eurodollar Advances hereunder or its obligation to convert make any Base Advance to a LIBOR Advance of such Advances hereunder, or any reduction in any amount receivable by such 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 Costs"), resulting from any Regulatory Change which:
(1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the Notes its Note in respect of any of such LIBOR Advances (other than changes in the rate of income tax taxes imposed on the overall net income of such Bank or its Applicable Lending Office for any of such Advances by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio ratio, or similar requirements requirement relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities or commitments of, such Bank (including any LIBOR of such Advances or any deposits referred to in the definition of "LIBOR Eurodollar Rate" in Section 1.01 1.1 hereof), or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition affecting this Agreement or the 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 reduce 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 Bank requests compensation from the Borrower under this Section 4.1(a), the Borrower may, by notice to such Bank (with a copy to the Agent) suspend the obligation of such Bank to make or Continue making, or Convert Advances into, Advances of the Type with respect to 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 4.4 hereof shall be applicable).
(b) Without limiting the effect of the foregoing provisions of the first paragraph of this SectionSection 4.1, in the event that, by reason of any Regulatory Change, any Bank either (1i) 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 Bank which includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Advances is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate Eurodollar Advances or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to the Borrower (with a copy to Administrative the Agent), the obligation of such Bank to make or continueContinue making, or to convert Base Convert Advances into, LIBOR Advances, as the case may be, Advances of such Type hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of Section 10.04 4.4 hereof shall be applicable). .
(c) Determinations and allocations by such any Bank for purposes of this Section 4.1 of the effect of any Regulatory Change pursuant to this Section, on its costs or rate of return of maintaining the its obligations to make Advances or of making or maintaining Advances or on amounts receivable by it in respect of the Advances, and of the additional amounts required to compensate such Bank under this Sectionin respect of any Additional Costs, shall be conclusive absent manifest error. Howeverconclusive, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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, provided that such Additional Costs have been incurred by such Bankdeterminations and allocations are made on a reasonable basis.
Appears in 1 contract
Additional Costs. Borrower (a) The Company shall pay directly to each 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), from time to time such amounts as such Bank may determine to be necessary to compensate it for any increased costs which such Bank determines are attributable to its making or maintaining of any LIBOR Advance, Fixed Rate Loans or its obligation to convert make any Base Advance to a LIBOR Advance Fixed Rate Loans hereunder, or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting from any Regulatory Change which:
(1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the its Notes in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on or measured by the overall net income of such Bank or of its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);; or
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than the Reserve Requirement utilized in the determination of the Fixed Rate or LIBO Rate for such Loan) relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Fixed Base Rate" in Section 1.01 hereof), or any Individual 364 Day Facility commitment of such Bank (including the Commitment of a Banksuch Bank hereunder); or
(3iii) imposes any other condition affecting this Agreement or the Notes its Note (or any of such extensions of credit or liabilities) or Commitment. If any Bank requests compensation from the Company under this Section 5.01(a). , the Company may, by notice to such Bank (with a copy to the Agent), suspend the obligation of such Bank to make additional Loans of the type with respect to 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 5.04 hereof shall be applicable).
(b) Without limiting the effect of the provisions of the first paragraph of this SectionSection 5.01(a) hereof, in the event that, by reason of any Regulatory Change, any Bank either (1i) 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 Bank which includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate Eurodollar Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to Borrower the Company (with a copy to Administrative the Agent), the obligation of such Bank to make or continue, or to convert Base Advances into, LIBOR Advances, as the case may be, 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 10.04 5.04 hereof shall be applicable). Determinations and allocations .
(c) Without limiting the effect of the foregoing provisions of this Section 5.01 (but without duplication), the Company shall pay directly to each Bank from time to time on request such amounts as such Bank may determine to be necessary to compensate such 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 following any Regulatory Change, or pursuant to 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, including any 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 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 the purposes of this Section 5.01(c), "Basle Accord" shall mean the proposals for a risk-based capital framework described by the Basle Committee on Banking Regulations and Supervisory Practices in its paper entitled "International Convergence of the effect of any Regulatory Change pursuant to this Section, on its costs or rate of return of maintaining the Advances or on amounts receivable by it in respect of the Advances, Capital Measurement and the amounts required to compensate such Bank under this Section, 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 thatCapital Standards" dated July 1988, as promptly as practical after it becomes aware of the occurrence of an event or the existence of a condition that would entitle it amended, modified and supplemented and in effect from time 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) as a result thereof the additional money that would otherwise be required to be 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 require 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 Banktime.
Appears in 1 contract
Additional Costs. (a) The Borrower shall pay directly to each 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), from time to time such amounts as such Bank may determine to be necessary to compensate it for any increased reasonable costs incurred by such Bank which such Bank determines are attributable to its making or maintaining of any LIBOR Advance, Loans subject to Eurodollar Accounts hereunder or its obligation to convert make any Base Advance to a LIBOR Advance of such Loans hereunder, or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting from any Regulatory Change which:
(1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the its Notes in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax franchise taxes and taxes imposed on the overall net income of such Bank or its Applicable Lending Office for any of such Loans by the United States of America or the jurisdiction in which such Bank has its principal office Principal Office or such Applicable Lending Office);
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio ratio, or similar requirements requirement relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities or commitments of, such Bank (including any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Eurodollar Rate" in Section 1.01 1.1 hereof), or any Individual 364 Day Facility Commitment of a Bank; or
(3a) imposes If any other condition affecting Bank requests compensation from the Borrower under this Agreement or subsection 6.1(a), the Notes Borrower may, by notice to such Bank (or any with a copy to the Agent) suspend the obligation of such extensions Bank to make Loans subject to Eurodollar Accounts or Continue Eurodollar Accounts as Eurodollar Accounts or Convert Base Rate Accounts into Eurodollar Accounts until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of credit or liabilitiesSection 6.4 hereof shall be applicable with respect to such Eurodollar Accounts). .
(b) Without limiting the effect of the foregoing provisions of the first paragraph of this SectionSection 6.1, in the event that, by reason of any Regulatory Change, any Bank either (1i) 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 Bank which includes deposits by reference to which the LIBOR Rate interest rate on the Loans subject to Eurodollar Accounts is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate Loans subject to Eurodollar Accounts or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to the Borrower (with a copy to Administrative the Agent), the obligation of such Bank to make Loans subject to Eurodollar Accounts or continue, Continue Eurodollar Accounts as Eurodollar Accounts or to convert Convert Base Advances into, LIBOR Advances, as the case may be, Rate Accounts into Eurodollar 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 10.04 6.4 hereof shall be applicable). .
(c) Determinations and allocations by such any Bank for purposes of this Section 6.1 of the effect of any Regulatory Change pursuant to this Section, on its costs or rate of return of maintaining the Advances its obligation to make Loans or of making or maintaining Loans or on amounts receivable by it in respect of the AdvancesLoans, and of the additional amounts required to compensate such Bank under this Sectionin respect of any Additional Costs, shall be conclusive shall, absent manifest error. However, to the extent Additional Costs relate to a Bank's loans in general and not specifically to a Loan hereunderbe conclusive, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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, provided that such Additional Costs have been incurred by such Bankdeterminations and allocations are made on a reasonable basis.
Appears in 1 contract
Additional Costs. (a) The Borrower shall pay directly to each 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), Lender from time to time such amounts as such Bank Lender may determine to be necessary to compensate it for any increased costs incurred by such Lender which such Bank Lender determines are attributable to its making or maintaining of any LIBOR Advance, Eurodollar Advances hereunder or its obligation to convert any Base Advance to a LIBOR Advance make such Advances hereunder, or any reduction in any amount receivable by such Bank Lender 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 which:
(1i) changes the basis of taxation of any amounts payable to such Bank Lender under this Agreement or the Notes its Note in respect of any of such LIBOR Eurodollar Advances (other than changes in the rate of income tax taxes imposed on the overall net income of such Bank Lender or its Applicable Lending Office for any Eurodollar Advances by the jurisdiction in which such Bank Lender has its principal office or such Applicable Lending Office);
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio ratio, or similar requirements requirement relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities or commitments of, such Bank Lender (including any LIBOR Eurodollar Advances or any deposits referred to in the definition of "LIBOR Eurodollar Rate" in Section 1.01 1.1 hereof), or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition affecting this Agreement or the Notes (its Note or any of such extensions of credit or liabilitiesliabilities or commitments. Each Lender will notify the Borrower (with a copy to the Administrative Agent) of any event occurring after the date of this Agreement which will entitle such Lender to compensation pursuant to this Section 5.1(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 Eurodollar Advances 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, 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 outside the United States of America. Each Lender will furnish to the Borrower, within 120 days after the occurrence of the event resulting in Additional Costs, a certificate setting forth the basis and the amount of each request of such Lender for compensation under this Section 5.1(a). If any Lender requests compensation from the Borrower under this Section 5.1(a), the Borrower may, by notice to such Lender (with a copy to Administrative Agent), suspend the obligation of such Lender to make or Continue making, or Convert 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 5.4 hereof shall be applicable) and may convert any Eurodollar Advance into a Base Rate Advance, subject to the provisions of Section 5.5.
(b) Without limiting the effect of the foregoing provisions of the first paragraph of this SectionSection 5.1, in the event that, by reason of any Regulatory Change, any Bank Lender either (1i) 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 Bank Lender which includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Advances is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank Lender which includes loans based on the LIBOR Rate Eurodollar Advances or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank Lender so elects by notice to the Borrower (with a copy to Administrative Agent), the obligation of such Bank Lender to make or continueContinue making, or to convert Base Convert Advances into, LIBOR Advances, as the case may be, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of Section 10.04 5.4 hereof shall be applicable). .
(c) Determinations and allocations by such Bank any Lender for purposes of this Section 5.1 of the effect of any Regulatory Change pursuant to this Section, on its costs or rate of return of maintaining the its obligations to make Advances or of making or maintaining Advances or on amounts receivable by it in respect of the Advances, and of the additional amounts required to compensate such Bank under this SectionLender in respect of any Additional Costs, shall be conclusive absent manifest error. Howeverconclusive, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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, provided that such Additional Costs have been incurred by such Bankdeterminations and allocations are made on a reasonable basis.
Appears in 1 contract
Additional Costs. Borrower (a) The Servicer shall pay directly to each 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 Funding Agent, for the request)benefit of an Affected Party, from time to time on demand of such Affected Party through the Funding Agent, such amounts as such Bank Affected Party may reasonably determine to be necessary to compensate it for any increased increase in costs which any such Bank Affected Party determines are attributable to its making acquiring the Transferred Interest or maintaining any LIBOR Advance, or its obligation to convert any Base Advance to a LIBOR Advance hereunderTranche under this Agreement, or any reduction in any amount receivable by such Bank Affected Party, hereunder or under any other Program Document (other than an Interest Rate Cap) in respect of any of such LIBOR Advances Tranche or such obligation (such increases in costs costs, payments and reductions in amounts receivable being herein called "Additional Costs"), ) resulting from any Regulatory Change which:
which (1i) changes the method or basis of taxation imposition of Taxes in respect of (A) any amounts payable to such Bank under any Affected Party pursuant to this Agreement or the Notes any other Program Document (other than an Interest Rate Cap) or any transaction hereunder or thereunder in respect of any of such LIBOR Advances Tranche or (other than changes in the rate of income tax imposed on B) such Bank or its Applicable Lending Office amounts when considered together with any amounts to be paid by the jurisdiction Purchaser in which respect of its Commercial Paper relating to such Bank has its principal office or such Applicable Lending Office);
Tranche, (2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank of any Affected Party or (including any LIBOR Advances or any deposits referred to in the definition of "LIBOR Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition affecting this Agreement or the Notes any other Program Document (other than an Interest Rate Cap) or any transaction hereunder or thereunder (or any of such extensions of credit or liabilities). Without limiting The Affected Party, acting through the effect of Funding Agent, will notify the provisions of Transferor and the first paragraph of this Section, in the event that, by reason Servicer of any Regulatory Change, any Bank either event that will entitle such Person to compensation pursuant to this Section 8.3(a) no later than thirty (130) 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 Bank which includes deposits by reference to which the LIBOR Rate is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate or Business Days after it obtains knowledge thereof.
(2b) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to Borrower (with a copy to Administrative Agent), the obligation of such Bank to make or continue, or to convert Base Advances into, 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 10.04 hereof shall be applicable). Determinations and allocations by such Bank the Affected Party for purposes of this Section 8.3 shall be conclusive, provided that such determinations and allocations are made in good faith and on a reasonable basis, reasonable evidence (including an explanation of the effect applicable Regulatory Change and an accounting for any amounts demanded) of which shall be provided to the Transferor and the Servicer upon request.
(c) Each Affected Party agrees to promptly notify the Transferor and the Servicer if such Person receives notice of any Regulatory Change potential tax assessment by any federal, state or local tax authority for which the Servicer may be liable pursuant to this Section, on its Sections 8.1 or 8.2 hereof. Each Affected Party further agrees that the Servicer shall bear no cost (including costs or rate of return of maintaining the Advances or on amounts receivable by it in respect of the Advances, relating to penalties and the amounts required to compensate such Bank under this Section, shall be conclusive absent manifest error. However, interest) relating 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 failure of such Bank if (a) as Affected Party to file in a result thereof the additional money that would otherwise be timely manner any tax returns required to be 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 require 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 filed 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 BankPerson in accordance with applicable statutes and regulations.
Appears in 1 contract
Sources: Transfer and Administration Agreement (Navistar Financial Retail Receivables Corporation)
Additional Costs. Borrower (a) The Company shall pay directly to the Agent for the account of each 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), from time to time such amounts as such Bank may reasonably determine to be necessary to compensate it for any increased costs which such Bank determines are attributable to its making or maintaining of any LIBOR Advance, of its Loans or its obligation to convert any Base Advance to a LIBOR Advance hereunder, make such Loans hereunder or any reduction in any amount receivable by such Bank from the Company hereunder or under the Notes in respect of any of such LIBOR Advances its Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "“Additional Costs"”), resulting from any Regulatory Change which:
: (1i) changes the basis of taxation of any amounts payable to the Agent or such Bank by the Company under this Agreement or the Notes in respect of any of such LIBOR Advances Note (other than changes in the rate of income tax taxes imposed on the overall net income of such Bank or of its Applicable Lending Office by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);
; or (2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements requirements, or increases the rate of any such requirements, relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances of such Bank’s Loans or any deposits referred to in the definition of "LIBOR Rate" “LIBOR” in Section 1.01 hereof), or any Individual 364 Day Facility Commitment of a Bankthe Commitments or the Notes; or
or (3iii) imposes any other condition affecting this Agreement or the Notes (or any of such extensions of credit or liabilities) or the Commitments. The relevant Bank will notify the Company (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 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), in no event shall any Bank requesting payment of any Additional Costs under this Section 5.01(a) be entitled to payment of such Additional Costs to the 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 reduce the amount of, such compensation and will not, in the 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 for compensation under this Section 5.01(a).
(b) Without limiting the effect of the provisions of the first paragraph of this SectionSection 5.01(a) hereof (but without duplication), in the event that, by reason of any Regulatory Change, any Bank either (1) 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 Bank which includes deposits by reference to which the LIBOR Rate is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate or (2) becomes subject to restrictions on the amount of such a any category of liabilities or assets which (relating to any Loan held by it may holdor its funding), then, if such Bank so elects by notice to Borrower the Company (with a copy to Administrative the Agent), the obligation following provisions shall apply:
(x) During the 30-day period following the date of any such notice (the “Negotiation Period”), such Bank and the Company will negotiate in good faith (through the Agent) to make or continue, or to convert Base Advances into, LIBOR Advances, as agree upon a substitute basis (the case may be, shall be suspended until such Regulatory Change ceases “Substitute Basis”) for determining the rate of interest to be in effect (in which case applicable to the provisions of Section 10.04 hereof shall be applicable). Determinations and allocations Loans held by such Bank (including, if appropriate, alternative periods for purposes of this 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 Section 3.02 hereof (subject to Section 3.04) and shall be retroactive to, and take effect from, the beginning of the effect of any Regulatory Change pursuant to this Section, on its costs or rate of return of maintaining the Advances or on amounts receivable by it in respect of the Advances, and the amounts required to compensate such Bank under this Section, 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, then current Interest Period for 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) as a result thereof the additional money that would otherwise be required to be 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 require 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 BankLoan.
Appears in 1 contract
Sources: Loan Agreement (Coca Cola Bottling Co Consolidated /De/)
Additional Costs. Borrower (a) Iusacell shall pay directly to each 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), from time to time such amounts as such Bank may determine to be necessary to compensate it such Bank for any increased costs which that such Bank determines are attributable to its making or maintaining of any LIBOR Advance, Loan or its obligation to convert make any Base Advance to a LIBOR Advance Loan hereunder, or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR Advances Loan 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 whichthat:
(1i) shall subject such Bank (or the Applicable Lending Office) to any tax, duty or other charge in respect of any Loan or any Note or changes the basis of taxation of any amounts payable to such Bank under this Agreement or the Notes any Note in respect of any of such LIBOR Advances Loan (other than excluding changes in the rate of tax on the overall net income tax imposed on of such Bank or its of such Applicable Lending Office by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);; or
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than the Reserve Requirement utilized in the determination of the LIBO Rate for such Loan) relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such the Bank (including including, without limitation, any LIBOR Advances Loan or any deposits referred to in the definition of "LIBOR LIBO Base Rate" in Section 1.01 hereof), or any Individual 364 Day Facility commitment of such Bank (including, without limitation, the Commitment of a Banksuch Bank hereunder); or
(3iii) imposes any other condition affecting this Agreement or the Notes any Note (or any of such extensions of credit or liabilities)) or its Commitment. Without limiting the effect of the provisions of the first paragraph of this Section, in the event that, by reason of any Regulatory Change, If any Bank either (1) 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 Bank which includes deposits by reference to which the LIBOR Rate is determined as provided in requests compensation from Iusacell under this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate or (2) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may holdSection 5.01(a), thenIusacell may, if such Bank so elects by notice to Borrower such Bank (with a copy to Administrative the Agent), suspend the obligation of such Bank thereafter to make or continueLoans, or to convert Base Advances into, LIBOR Advances, as until the case may be, shall be suspended until such Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of Section 10.04 5.04 hereof shall be applicable), provided that such suspension shall not affect the right of such Bank to receive the compensation so requested.
(b) Without limiting the effect of the foregoing provisions of this Section 5.01 (but without duplication), Iusacell shall pay directly to each Bank from time to time on request such amounts as such Bank may determine to be necessary to compensate such 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 of any jurisdiction or any interpretation, directive or request (whether or not having the force of law and whether or not having the force of law and whether or not failure to comply therewith would be unlawful) enacted after the date hereof of any court or governmental or monetary authority of capital in Credit Agreement respect of any Loan of such Bank or its Commitment 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 (or any Applicable Lending Office or such bank holding company) to a level below that which it could have achieved but for such law, regulation, interpretation, directive or request).
(c) Each Bank shall notify Iusacell 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 it obtains actual knowledge thereof; provided that (i) if such 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) such Bank will designate a different Applicable Lending Office 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 Iusacell a certificate setting forth the basis and amount of each request by such Bank for compensation under paragraph (a) or (b) of this Section 5.01. Determinations and allocations by such any Bank for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to paragraph (a) or (b) of this Section, Section 5.01 on its costs or rate of return of maintaining the Advances any Loan or its obligation to make any Loan, or on amounts receivable by it in respect of the Advancesany Loan, and of the amounts required to compensate such the Bank under this SectionSection 5.01, shall be conclusive shall, absent manifest error. However, to the extent Additional Costs relate to a Bank's loans in general and not specifically to a Loan hereunderbe conclusive, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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, provided that such Additional Costs have been incurred by such Bankdeterminations and allocations are made on a reasonable basis.
Appears in 1 contract
Additional Costs. (a) The Borrower shall pay directly to each Bank within ten (10) days Lender from time to time, promptly upon the request of a request for payment under this Section (which request shall be accompanied such Lender, the costs incurred by a statement setting forth the basis for the request), such amounts as such Bank may determine to be necessary to compensate it for any increased costs Lender which such Bank Lender determines are attributable to its making or maintaining of any LIBOR Advance, Eurodollar Loans hereunder or its obligation to convert make any Base Advance to a LIBOR Advance of such Loans hereunder, or any reduction in any amount receivable by such Bank Lender hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), ---------------- resulting from any Regulatory Change which:
(1i) changes the basis of taxation of any amounts payable to such Bank Lender under this Agreement or the its Notes in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on the overall net income of such Bank Lender or its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank Lender has its principal office or such Applicable Lending Office);
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements requirement relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities or commitments of, such Bank Lender (including any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Eurodollar Rate" in Section 1.01 1.1 hereof, ----------- but excluding the Reserve Requirement to the extent it is included in the calculation of the Adjusted Eurodollar Rate), or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition affecting this Agreement or the Notes (or any of such extensions of credit or liabilities). Without limiting the effect of the provisions of the first paragraph of this Section, in the event that, by reason of any Regulatory Change, any Bank either (1) 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 Bank which includes deposits by reference to which the LIBOR Rate is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate or (2) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may holdcommitments.
Section 4.1 (a), thenthe Borrower may, if such Bank so elects by notice to Borrower such Lender (with a copy to Administrative the -------------- Agent), suspend the obligation of such Bank Lender to make or continueContinue making, or to convert Base Advances Convert Prime Rate Loans into, LIBOR Advances, as Eurodollar Loans until the case may be, shall be suspended until such Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of Section 10.04 4.4 hereof shall be applicable). -----------
(c) Determinations and allocations by such Bank any Lender for purposes of this Section 4.1 of the effect of any Regulatory Change pursuant to this Section, on its costs or rate of return of maintaining the Advances ----------- its obligation to make Loans or of making or maintaining Loans or on amounts receivable by it in respect of the AdvancesLoans, and of the additional amounts required to compensate such Bank under this SectionLender in respect of any Additional Costs, shall be conclusive absent in the absence of 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) as a result thereof the additional money that would otherwise be required to be 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 require 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, provided that such Additional Costs have been incurred by such Bankdeterminations and allocations are made on a reasonable basis.
Appears in 1 contract
Sources: Credit Agreement (Mail Well Inc)
Additional Costs. Borrower (a) The Borrowers shall pay directly to each 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), from time to time such amounts as such Bank may reasonably determine to be necessary to compensate it for any increased costs incurred by such Bank which such Bank determines are attributable to its making or maintaining of any LIBOR Advance, Loans hereunder or its obligation to convert make any Base Advance to a LIBOR Advance of such Borrower Loans hereunder, or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR Advances Loan 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 which:
(1) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the Note or Notes held by such Bank in respect of any of such LIBOR Advances (other than changes in the rate of income tax imposed on such Bank or its Applicable Lending Office by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);Loan; or
(2) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances Loan or any deposits referred to in the definition of "LIBOR Rate" below). Each Bank will notify the Borrowers of any event occurring after the date of this Agreement which will entitle such Bank to compensation pursuant to this Section 3.7 as promptly as practicable after it obtains knowledge thereof and determines to request such compensation. Such Bank will furnish the Borrowers with a statement, in reasonable detail, setting forth the basis and amount of each request by such Bank for compensation under this Section 1.01 hereof), or any Individual 364 Day Facility Commitment of a Bank; or3.7.
(3b) imposes any other condition affecting this Agreement or the Notes (or any of such extensions of credit or liabilities). Without limiting the effect of the foregoing provisions of the first paragraph of this Section, Section 3.7 in the event that, by reason of any Regulatory Change, any Bank either (1i) 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 Bank which includes deposits by reference to which the interest rate on LIBOR Rate Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to Borrower (with a copy to Administrative Agent)the Borrowers, the obligation of such Bank to make or continue, or to convert Base Advances into, LIBOR Advances, as the case may be, Loans hereunder shall be suspended until the date such Regulatory Change ceases to be in effect effect.
(in which case the provisions of Section 10.04 hereof shall be applicable). c) Determinations and allocations by such any Bank for purposes of this Section 3.7 of the effect of any Regulatory Change pursuant to this Section, on its costs or rate of return of maintaining the Advances its obligations to make LIBOR Loans or of making or maintaining LIBOR Loans or on amounts receivable by it in respect of the AdvancesLIBOR Loans, and of the additional amounts required to compensate such Bank under this Sectionin respect of any Additional Costs, shall be conclusive absent manifest error. However, to the extent Additional Costs relate to provided that such determinations and allocations are made on a Bank's loans reasonable basis, and provided further that in general and not specifically to a Loan hereunder, such administering this Section each Bank shall use reasonable averaging and attribution methods. In addition, each not single out the Borrowers for different treatment but shall deal with them on the same basis as the 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 deals with 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) as a result thereof the additional money that would otherwise be required to be 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 require 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 Bankcustomers generally.
Appears in 1 contract
Additional Costs. (a) The Borrower shall pay directly to each Bank within ten (10) days the Agent on behalf of a request for payment under this Section (which request shall be accompanied by a statement setting forth the basis for the request)any Bank, from time to time, on demand of such Bank, such amounts as such Bank may reasonably determine to be necessary to compensate it for any increased costs which such Bank reasonably determines are attributable to its making or maintaining any LIBOR Advance, or its obligation to convert make any Base Advance to a LIBOR Advance Loan hereunder, or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting from any Regulatory Change which:
: (1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the Notes its Note in respect of any of Loans or such LIBOR Advances obligation (other than changes in the rate of income tax taxes imposed on the overall net income or franchise of such Bank or of its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);
; or (2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, ; such Bank (including any LIBOR Advances of such Loans or any deposits referred to in the definitions of "LIBOR Loans", except to the extent that such cost is incorporated in the definition of "LIBOR Rate" in Section 1.01 hereofReserve Adjusted LIBOR"), ; or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition affecting this Agreement Agreement, or the Notes its Note (or any of such extensions of credit or liabilities)) and such Bank's obligations with respect thereto. Each Bank will notify the Agent, and the Agent shall notify the Borrower, of any Regulatory Change which will entitle such Bank to compensation 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 basis of the calculation of such additional compensation. The determination by any Bank of such amount shall, in the absence of any manifest error, be conclusive.
(b) Without limiting the effect of the foregoing provisions of the first paragraph of this SectionSection 4.2, in the event that, by reason of any Regulatory Change, any Bank either (1i) 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 Bank which includes deposits by reference to which the interest rate on LIBOR Rate Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to Borrower (with a copy to Administrative the Agent), the obligation of such Bank to make or continue, or to convert Base Advances into, LIBOR Advances, as the case may be, Loans hereunder shall be suspended until the date such Regulatory Change ceases to be in effect (in which case the provisions of Section 10.04 hereof 4.5 shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this Section 4.2 (but without duplication), the Borrower shall pay to the Agent, and the Agent shall pay to any Bank from time to time on request such amounts as such Bank may reasonably determine to be necessary to compensate such 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 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 Agent will notify 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, which notice shall set forth the basis of the calculation of such additional compensation. The determination by any Bank of such amount, if done in good faith on the basis of any reasonable method, shall, in the absence of any manifest error, be conclusive.
(d) Determinations and allocations by such a Bank for purposes of this Section 4.2 of the effect of any Regulatory Change pursuant to this Sectionsubsection (a) or (b), or of the effect of capital maintained pursuant to subsection (c), on its costs of making or rate of return of maintaining the Advances Loans or its obligation to make Loans, or on amounts receivable by by, or the rate of return to, it in respect of the AdvancesLoans, and of the additional amounts required to compensate such Bank under this SectionSection 4.2, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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
Additional Costs. Borrower (a) The Borrowers shall pay directly to each 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), from time to time such amounts as such Bank may reasonably determine to be necessary to compensate it for any increased costs (not otherwise included in the Assessment Rate or Reserve Requirement) which such Bank determines are attributable to its making or maintaining of any LIBOR AdvanceFixed Rate Loans, or its obligation to convert make any Base Advance to a LIBOR Advance Loans hereunder, or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting from any Regulatory Change which:
(1) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the Notes held by such Bank in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on the overall net income of such Bank or its Applicable Lending Office by the jurisdiction in which for any of such Bank has its principal office or such Applicable Lending OfficeLoans);
(2) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, of such Bank (including any LIBOR Advances of such Loans, such obligations or any deposits referred to in the definition of "LIBOR Fixed Base Rate" in Section 1.01 1.1 hereof), or any Individual 364 Day Facility Commitment of a Bank; or
(3) imposes any other condition affecting this Agreement or the Notes held by such Bank (or any of such extensions of credit or liabilities). Without limiting Additional Costs shall not include, with respect to Base Rate Loans, any amounts which the effect Administrative Agent certifies are reflected in an increase of the provisions Base Rate for the period in which such increase is in effect. Each Bank will notify the Borrowers and the Administrative Agent of any event occurring after the first paragraph date of this Section, Agreement which will entitle such Bank to compensation pursuant to this Section 5.1(a) as promptly as practicable after it obtains knowledge thereof and determines to request such compensation and will furnish the Borrowers with a certificate setting forth in reasonable detail the event that, by reason of any Regulatory Change, any Bank either (1) incurs Additional Costs based on or measured by basis and the excess above a specified level calculation of the amount of each request for compensation under this Section 5.1(a). If a category of deposits or other liabilities of such Bank which includes deposits by reference to which requests compensation from the LIBOR Rate is determined as provided in Borrowers under this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on Section 5.1(a), the LIBOR Rate or (2) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may holdBorrowers may, then, if such Bank so elects by notice to Borrower (with a copy to Administrative Agent)such Bank, suspend the obligation of such Bank to make or continue, or to convert Base Advances into, 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 10.04 hereof shall be applicable). Determinations and allocations by such Bank for purposes of this Section additional Loans of the effect Type with respect to which such compensation is requested until the earlier of any Regulatory Change pursuant to this Section, on its costs or rate of return of maintaining the Advances or on amounts receivable by it in respect of the Advances, and the amounts required to compensate (i) such Bank under this Section, 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 waiver of the occurrence of an event its request for compensation 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) as a result thereof the additional money that would otherwise be required to be 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 require 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 (1ii) 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.Regulatory Change giving rise to
Appears in 1 contract
Sources: Credit Agreement (Charter Communications Southeast Lp)
Additional Costs. (a) The Borrower shall pay directly to each 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), from time to time on demand such amounts as such Bank may determine to be necessary to compensate it for any increased costs which such Bank reasonably determines are attributable to its making or maintaining any LIBOR Advance, Fixed Rate Loans under this Agreement or any of its Notes with respect to Fixed Rate Loans or its obligation to convert make any Base Advance to a LIBOR Advance such Loans hereunder, or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting from any Regulatory Change which:
: (1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the any of such Notes in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on the overall net income of such Bank or of its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);
; or (2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Fixed Base Rate" in Section 1.01 hereofSECTION 1.01), ; or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition affecting this Agreement or the any of such 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) as promptly as practicable after it obtains knowledge thereof and determines to request such compensation. If any Bank requests compensation from the Borrower under this SECTION 3.01(A), or under SECTION 3.01(C), 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 in accordance with SECTION 3.04.
(b) Without limiting the effect of the foregoing provisions of the first paragraph of this SectionSECTION 3.01, in the event that, by reason of any Regulatory Change, any Bank either (1i) 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 Bank which includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate Eurodollar Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to the Borrower (with a copy to Administrative the Agent), the obligation of such Bank to make or continuerenew, or and to convert Base Advances Loans of any other type into, LIBOR Advances, as the case may be, 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 converted in which case accordance with SECTION 3.04).
(c) Without limiting the effect of the foregoing provisions of Section 10.04 hereof this SECTION 3.01 (but without duplication), the Borrower shall pay directly to each Bank from time to time on request such amounts as such Bank may reasonably determine to be applicablenecessary to compensate such 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 such a Bank for purposes of this Section SECTION 3.01 of the effect of any Regulatory Change pursuant to this Sectionsubsections (a) or (b), or of the effect of capital maintained pursuant to subsection (c), on its costs of making or rate of return of maintaining the Advances Loans or its obligation to make Loans, or on amounts receivable by by, or the rate of return to, it in respect of the AdvancesLoans or such obligation, and of the additional amounts required to compensate such Bank under this SectionSECTION 3.01, shall be conclusive absent manifest error. Howeverconclusive, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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, provided that such Additional Costs have been incurred by such Bankdeterminations and allocations are made on a reasonable basis.
Appears in 1 contract
Additional Costs. (i) The Borrower shall pay directly to each 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), from time to time such amounts as such Bank may determine to be necessary to compensate it for any increased costs incurred by such Bank which such Bank determines are attributable to its making or maintaining any LIBOR Advance, Loans or its obligation to convert any Base Advance to a LIBOR Advance hereunder, Revolving Commitment hereunder or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR Advances Loans or such obligation Revolving Commitments (such increases in costs and reductions in amounts receivable being herein called "“Additional Costs"”), resulting from any Regulatory Change which:
: (1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the Notes its Note in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on the overall net income of such Bank or its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);
; or (2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances or any deposits referred to in the definition of "LIBOR Rate" “LIBOR” in Section 1.01 Article 1 hereof), ; or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition conditions affecting this Agreement or in respect of the Notes (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(a) 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 liabilitieseach request for such Bank for compensation from the Borrower under this Section 2.20(a). The Borrower may, by notice to such Bank (with a copy to the Agent), require that such Bank’s LIBOR Loans with respect to which such compensation is so requested be converted into Base Rate Loans in accordance with Section 2.23 hereof.
(ii) Without limiting the effect of the foregoing provisions of the first paragraph of this SectionSection 2.20, in the event that, by reason of any Regulatory Change, any Bank either (1i) 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 Bank which includes deposits by reference to which the interest rate on LIBOR Rate Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to the Borrower (with a copy to Administrative the Agent), the obligation of such Bank to make or continueLIBOR Loans, or and to convert Base Advances into, Rate Loans into LIBOR Advances, as the case may be, Loans hereunder shall be suspended until the date such Regulatory Change ceases to be in effect (in which case the provisions and all LIBOR Loans of Section 10.04 hereof such Bank then outstanding shall be applicableconverted into Base Rate Loans in accordance with Section 2.23 hereof). Determinations .
(b) If any existing or future law or regulation or the interpretation thereof by any court 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 allocations the result thereof is to impose upon such Bank or increase any capital requirement applicable as a result of the making or maintenance of such Bank’s Revolving 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 (a copy of which demand shall be delivered to the Agent), the Borrower shall immediately pay to the Bank from time to time specified by the Bank, such additional fees as shall be sufficient to compensate the Bank for such imposition of or increase in capital requirements. 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(b).
(c) Determinations by any Bank for purposes of this Section 2.20 of the effect of any Regulatory Change pursuant to this Section, on its costs of making or rate of return of maintaining the Advances Loans or on amounts receivable by it in respect of the AdvancesLoans, and of the additional amounts required to compensate such Bank under this Sectionin respect of any Additional Costs, shall be conclusive 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) as a result thereof the additional money that would otherwise be required to be 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 require 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: Credit Agreement (National Consumer Cooperative Bank /Dc/)
Additional Costs. (a) Borrower shall hereby agrees to pay directly to each 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), Lender from time to time such amounts as such Bank Lender may determine to be necessary to compensate it for any increased costs incurred by such Lender which such Bank Lender determines are attributable to its making or maintaining any LIBOR Advance, Eurodollar Advances hereunder or its obligation to convert make any Base Advance to a LIBOR Advance of such Advances hereunder, or any reduction in any amount receivable by such Bank Lender 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 which:
(1i) changes the basis of taxation of any amounts payable to such Bank Lender under this Agreement or the its Notes in respect of any of such LIBOR Advances (other than changes in the rate of income tax (1) taxes imposed on the overall net income of such Bank Lender or its Applicable Lending Office by for any of such Advances, (2) franchise or similar taxes of such Lender, and (3) amounts withheld pursuant to the jurisdiction in which such Bank has its principal office or such Applicable Lending Officelast sentence of SECTION 3.7);
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio ratio, or similar requirements requirement relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities or commitments of, such Bank (including any LIBOR Advances or any deposits referred to in the definition of "LIBOR Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment of a BankLender; or
(3iii) imposes any other condition Additional Cost affecting this Agreement or the Notes (or any of such extensions extensions, of credit or liabilitiesliabilities or commitments. Each Lender will notify Borrower of any event occurring after the date of this Agreement 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 will designate a different Applicable Lending Office for the Advances 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, 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 outside the United States of America. Each Lender will furnish Borrower with a certificate setting forth the basis and the amount of each request of such Lender for compensation under this SECTION 4.1(a). If any Lender requests compensation from Borrower under this SECTION 4.1(a), Borrower may, by notice to such Lender (with a copy to the Administrative Agent) suspend the obligation of such Lender to make or Continue making Eurodollar Advances until the Regulatory Change giving rise to such request ceases to be in effect (in which case such Lender's Eurodollar Advances shall be Converted to Alternate Base Rate Advances in accordance with the provisions of SECTION 4.4).
(b) Without limiting the effect of the foregoing provisions of the first paragraph of this SectionSECTION 4.1, in the event that, by reason of any Regulatory Change, any Bank Lender either (1i) 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 Bank Lender which includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Advances is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank Lender which includes loans based on the LIBOR Rate Eurodollar Advances or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank Lender so elects by notice to Borrower (with a copy to the Administrative Agent), the obligation of such Bank Lender to make or continue, or to convert Base Continue making Eurodollar Advances into, LIBOR Advances, as the case may be, hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case such Lender's Eurodollar Advances shall be Converted to Alternate Base Rate Advances in accordance with the provisions of Section 10.04 hereof shall be applicableSECTION 4.4). .
(c) Determinations and allocations by such Bank any Lender for purposes of this Section SECTION 4.1 of the effect of any Regulatory Change pursuant to this Section, on its costs or rate of return of maintaining the its obligations to make Advances or of making or maintaining Advances or on amounts receivable by it in respect of the Advances, and of the additional amounts required to compensate such Bank under this SectionLender in respect of any Additional Costs, shall be conclusive conclusive, absent manifest error. However, to the extent Additional Costs relate to a Bank's loans in general error 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) as a result thereof the additional money that would otherwise be required to be 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 require 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, provided that such Additional Costs have been incurred by such Bankdeterminations and allocations are made on a reasonable basis.
Appears in 1 contract
Additional Costs. (a) The Borrower shall pay directly to each 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), from time to time on demand such amounts as such Bank may determine to be necessary to compensate it for any increased costs which such Bank reasonably determines are attributable to its making or maintaining any LIBOR Advance, Fixed Rate Loans under this Agreement or any of its Notes with respect to Fixed Rate Loans or its obligation to convert make any Base Advance to a LIBOR Advance such Loans hereunder, or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting from any Regulatory Change which:
: (1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the any of such Notes in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on the overall net income of such Bank or of its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);
; or (2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Fixed Base Rate" in Section 1.01 hereof1.01), ; or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition affecting this Agreement or the any of such 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) as promptly as practicable after it obtains knowledge thereof and determines to request such compensation. If any Bank requests compensation from the Borrower under this Section 3.01(a), or under Section 3.01(c), 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 in accordance with Section 3.04.
(b) Without limiting the effect of the foregoing provisions of the first paragraph of this SectionSection 3.01, in the event that, by reason of any Regulatory Change, any Bank either (1i) 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 Bank which includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate Eurodollar Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to the Borrower (with a copy to Administrative the Agent), the obligation of such Bank to make or continuerenew, or and to convert Base Advances Loans of any other type into, LIBOR Advances, as the case may be, 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 converted in which case accordance with Section 3.04).
(c) Without limiting the effect of the foregoing provisions of this Section 10.04 hereof 3.01 (but without duplication), the Borrower shall pay directly to each Bank from time to time on request such amounts as such Bank may reasonably determine to be applicablenecessary to compensate such 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 such a Bank for purposes of this Section 3.01 of the effect of any Regulatory Change pursuant to this Sectionsubsections (a) or (b), or of the effect of capital maintained pursuant to subsection (c), on its costs of making or rate of return of maintaining the Advances Loans or its obligation to make Loans, or on amounts receivable by by, or the rate of return to, it in respect of the AdvancesLoans or such obligation, and of the additional amounts required to compensate such Bank under this SectionSection 3.01, shall be conclusive absent manifest error. Howeverconclusive, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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, provided that such Additional Costs have been incurred by such Bankdeterminations and allocations are made on a reasonable basis.
Appears in 1 contract
Additional Costs. (i) The Borrower shall pay directly to each 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), from time to time such amounts as such Bank may determine to be necessary to compensate it for any increased costs incurred by such Bank which such Bank determines are attributable to its making or maintaining any LIBOR Advance, Loans or its obligation to convert any Base Advance to a LIBOR Advance hereunder, Total Commitment hereunder or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR 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 which:
: (1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the Notes its Note in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on the overall net income of such Bank or its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);
; or (2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances or any deposits referred to in the definition of "LIBOR Rate" in Section 1.01 Article 1 hereof), ; or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition conditions affecting this Agreement in respect of the 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 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 each request for 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 Notes case may be, in accordance with Sections 2.8 and 2.23 hereof.
(or any of such extensions of credit or liabilities). ii) Without limiting the effect of the foregoing provisions of the first paragraph of this SectionSection 2.20, in the event that, by reason of any Regulatory Change, any Bank either (1i) 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 Bank which includes deposits by reference to which the interest rate on LIBOR Rate Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to the Borrower (with a copy to Administrative the Agent), the obligation of such Bank to make or continuemake, or and to convert Base Advances Loans of any other type into, LIBOR Advances, as the case may be, 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 10.04 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). Determinations .
(b) If any existing or future law or regulation or the 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 allocations the result thereof is to impose upon such Bank or increase any capital requirement applicable as a result of the making or maintenance of such 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 (a copy of which demand shall be delivered to the Agent), the Borrower shall immediately pay to the Bank from time to time specified by the Bank, such additional fees as shall be sufficient to compensate the Bank for such imposition of or increase in capital requirements. 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 pursuant to this Section, on its costs of making or rate of return of maintaining the Advances Loans or on amounts receivable by it in respect of the AdvancesLoans, and of the additional amounts required to compensate such Bank under this Sectionin respect of any Additional Costs, shall be conclusive 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) as a result thereof the additional money that would otherwise be required to be 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 require 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: Loan Agreement (National Consumer Cooperative Bank /Dc/)
Additional Costs. (a) Each Borrower shall pay directly to each 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), from time to time such amounts as such Bank may determine to be necessary to compensate it such Bank for any increased costs which that such Bank determines are attributable to its making or maintaining of any LIBOR Advance, LIBO Rate Loans or its obligation to convert make any Base Advance to a LIBOR Advance LIBO Rate Loans hereunder, or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR 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 whichthat:
(1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the its Notes in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on or measured by the overall net income of such Bank or of its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);; or
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than the Reserve Requirement utilized in the determination of the LIBO Rate for such Loan) relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including including, without limitation, any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR LIBO Base Rate" in Section 1.01 hereof), or any Individual 364 Day Facility commitment of such Bank (including, without limitation, the Commitment of a Banksuch Bank hereunder); or
(3iii) imposes any other condition affecting this Agreement or the its Notes (or any of such extensions of credit or liabilities) or its Commitment. If any Bank requests compensation from any Borrower under this Section 5.01(a). , the Company may, by notice to such Bank (with a copy to the Administrative Agent), suspend the obligation of such Bank thereafter to make LIBO Rate Loans until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of Section 5.04 hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Bank to receive the compensation so requested.
(b) Without limiting the effect of the provisions of the first paragraph (a) of this SectionSection 5.01, in the event that, by reason of any Regulatory Change, any Bank either (1i) 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 Bank which that includes deposits by reference to which the LIBOR interest rate on LIBO Rate Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which that includes loans based on the LIBOR LIBO Rate Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which that it may hold, then, if such Bank so elects by notice to Borrower the Company (with a copy to the Administrative Agent), the obligation of such Bank to make or continue, or to convert Base Advances into, LIBOR Advances, as the case may be, LIBO Rate Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of Section 10.04 5.04 hereof shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this Section 5.01 (but without duplication), the Company shall pay directly to each Bank from time to time on request such amounts as such Bank may determine to be necessary to compensate such 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) issued after the Restatement Date 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 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) would have achieved with respect to its Commitment or Loans but for such law, regulation, interpretation, directive or request).
(d) Each Bank shall notify the Company of any event occurring after the Restatement Date entitling such Bank 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 Bank obtains actual knowledge thereof. 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. 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 5.01. Determinations and allocations by such any Bank for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to paragraph (a) or (b) of this SectionSection 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 the Advances Loans or its obligation to make Loans, or on amounts receivable by it in respect of the AdvancesLoans, and of the amounts required to compensate such Bank under this SectionSection 5.01, shall be conclusive absent manifest error. However, to PROVIDED that such determinations and allocations are made on a reasonable basis.
(e) Each Bank will designate a different Applicable Lending Office for 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 Loans of such Bank if affected by any event specified in paragraphs (a) as a result thereof the additional money that would otherwise be required to be paid in respect of such Advance could be reduced and ), (b) the making, funding or maintaining (c) of such Advance through such other lending office would not adversely affect such Advance or such Bank. Finally, if a Bank is to require Borrower to pay Additional Costs under this Section then 5.01 or in Section 5.03 hereof if such Bank must make a demand on Borrower to pay designation will avoid the need for, or reduce the amount of, such Additional Costs within ninety (90) days compensation or suspension, as the case may be, and will not, in the sole opinion 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 be disadvantageous to such Bank.
Appears in 1 contract
Sources: Credit Agreement (Newell Co)
Additional Costs. In addition to, and not in limitation of the immediately preceding clause (a), the Borrower shall promptly pay directly to each 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 Agent for the request), account of each affected Lender from time to time such amounts as such Bank Lender may determine to be necessary to compensate it such Lender for any increased costs which incurred by such Bank Lender that it determines are attributable to its making or maintaining of any LIBOR Advance, Loans or its obligation to convert make any Base Advance to a LIBOR Advance Loans hereunder, or any reduction in any amount receivable by such Bank hereunder Lender under this Agreement or any of the other Loan Documents in respect of any of such LIBOR 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"”), to the extent resulting from any Regulatory Change which:
that: (1i) changes the basis of taxation of any amounts payable to such Bank Lender under this Agreement or any of the Notes other Loan Documents in respect of any of such LIBOR Advances Loans or its Commitments (other than changes in taxes, fees, duties, levies, imposts, charges, deductions, withholdings or other charges which are excluded from the rate definition of income tax imposed on such Bank Taxes pursuant to the first sentence of Section 3.12.(a)); or its Applicable Lending Office by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than Regulation D of the Board of Governors of the Federal Reserve System or other reserve requirement to the extent utilized in the determination of LIBOR for such Loan) relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances or any deposits referred to in the definition of "LIBOR Rate" in Section 1.01 hereof)Lender, or any Individual 364 Day Facility Commitment of a Bank; or
(3) imposes any other condition affecting this Agreement or the Notes (or any commitment of such extensions Lender (including, without limitation, the Commitments of credit such Lender hereunder); or liabilities). Without limiting (iii) has or would have the effect of reducing the provisions rate of the first paragraph of this Section, in the event that, by reason of any Regulatory Change, any Bank either (1) 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 Bank Lender to a level below that which includes deposits by reference to which the LIBOR Rate is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate or (2) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to Borrower (with a copy to Administrative Agent), the obligation of such Bank to make or continue, or to convert Base Advances into, LIBOR Advances, as the case may be, 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 10.04 hereof shall be applicablecapital adequacy). 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 Advances or on amounts receivable by it in respect of the Advances, and the amounts required to compensate such Bank under this Section, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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: Credit Agreement (U-Store-It Trust)
Additional Costs. Borrower (a) The Transferor shall pay directly to each Bank within ten (10) days the Company from time to time on demand of a request for payment under this Section (which request shall be accompanied by a statement setting forth the basis for the request), Company such amounts as such Bank the Company and/or the Administrative Agent may reasonably determine to be necessary to compensate it for any increased increase in costs which such Bank the Company determines are attributable to its making a Transfer or maintaining any LIBOR Advance, Tranche under this Agreement or its obligation to convert make any Base Advance to a LIBOR Advance such Transfer or reinvestment hereunder, or any reduction in any amount receivable by such Bank the Company hereunder in respect of any of such LIBOR Advances Tranche or such obligation (such increases in costs costs, payments and reductions in amounts receivable being herein called "Additional Costs"), ) resulting from any Regulatory Change which:
which (1i) changes the method or basis of taxation of (A) any amounts payable to such Bank the Company under this Agreement or the Notes in respect of any of such LIBOR Advances Tranche or (other than changes in the rate of income tax imposed on B) such Bank or its Applicable Lending Office amounts when considered together with any amounts to be paid by the jurisdiction Company in which respect of its Commercial Paper notes relating to such Bank has its principal office or such Applicable Lending Office);
Tranche, (2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances or any deposits referred the banks that are parties to in the definition of "LIBOR Rate" in Section 1.01 hereof)Liquidity Facility, or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition affecting this Agreement or the Notes (or any of such extensions of credit or liabilities). Without limiting The Company will notify the effect of the provisions of the first paragraph of this Section, in the event that, by reason Transferor of any Regulatory Changeevent that will entitle the Company to compensation pursuant to this Section 8.3(a) as promptly as practicable after it obtains knowledge thereof.
(b) 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 Bank either (1) incurs Additional Costs based court or governmental or monetary authority, whether in effect on or measured by the excess above a specified level date of the amount of a category of deposits or other liabilities of such Bank which includes deposits by reference to which the LIBOR Rate is determined as provided in this Agreement or a category thereafter or in respect of extensions of credit any costs or other assets expenses incurred by the Company under the Liquidity Facility. The Company will notify the Transferor if the Company is entitled to compensation pursuant to this Section 8.3(b) as promptly as practicable after it obtains knowledge of such Bank which includes loans based on the LIBOR Rate event or condition.
(2c) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to Borrower (with a copy to Administrative Agent), the obligation of such Bank to make or continue, or to convert Base Advances into, 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 10.04 hereof shall be applicable). Determinations and allocations by such Bank the Company for purposes of this Section 8.3 shall be conclusive, provided that such determinations and allocations are made in good faith and on a reasonable basis, reasonable evidence (including an explanation of the effect of any applicable Regulatory Change pursuant to this Section, on its costs or rate and an accounting for any amounts demanded) of return of maintaining the Advances or on amounts receivable by it in respect of the Advances, and the amounts required to compensate such Bank under this Section, which shall be conclusive absent manifest error. However, provided to the extent Additional Costs relate Transferor upon request.
(d) Anything in this Section 8.3 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) as a result thereof the additional money that would otherwise be required to be 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. Finallycontrary notwithstanding, if a Bank is to require Borrower to pay Additional Costs the Company enters into agreements for the transfer of interests in receivables from Other Transferors, the Company shall allocate the liability for any amounts under this Section then 8.3 ("Section 8.3 Costs") to the Transferor and each Other Transferor which is attributable to the Transferor, which amounts shall be paid by the Transferor or to the Other Transferors; and provided, further, that if 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 Section 8.3 Costs are actually incurred by attributable to the Transferor and not attributable to any Other Transferor, the Transferor shall be solely liable for such BankSection 8.3 Costs, or (2) if such Section 8.3 Costs are attributable to Other Transferors and not attributable to the date on which Transferor, such Bank knows, or should have known, that Other Transferors shall be solely liable for such Additional Costs have been incurred by such Bank.Section 8.3
Appears in 1 contract
Sources: Receivables Transfer Agreement (Georgia Gulf Corp /De/)
Additional Costs. Borrower (a) The Company shall pay directly to each 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), from time to time such amounts as such Bank may determine to be necessary to compensate it such Bank for any increased costs which that such Bank determines are attributable to its making or maintaining of any LIBOR Advance, Eurodollar Loans or its obligation to convert make any Base Advance to a LIBOR Advance Eurodollar Loans hereunder, or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional ---------- Costs"), resulting from any Regulatory Change whichthat:
(1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the Notes its Note in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on or measured by the overall net income of such Bank or of its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);; or
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than the Reserve Requirement used in the determination of the Eurodollar Rate for any Interest Period for such Loan) relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including including, without limitation, any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Eurodollar Base Rate" in Section 1.01 hereof), or any Individual 364 Day Facility commitment of such Bank (including, without limitation, the Commitment of a Banksuch Bank hereunder); or
(3iii) imposes any other condition affecting this Agreement or the Notes its Note (or any of such extensions of credit or liabilities) or its Commitment. If any Bank requests compensation from the Company under this Section 5.01(a). , the Company may, by notice to such Bank (with a copy to the Administrative Agent), suspend the obligation of such Bank thereafter to make or Continue Eurodollar Loans, or to Convert Loans of any other Type into Eurodollar Loans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of Section 5.04 hereof shall be applicable), provided that such suspension shall not affect the right of such Bank to receive -------- the compensation so requested.
(b) Without limiting the effect of the provisions of the first paragraph of this SectionSection 5.01(a) hereof, in the event that, by reason of any Regulatory Change, any Bank either (1i) 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 Bank which that includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which that includes loans based on the LIBOR Rate Eurodollar Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which that it may hold, then, if such Bank so elects by notice to Borrower the Company (with a copy to the Administrative Agent), the obligation of such Bank to make or continueContinue, or to convert Base Advances Convert Loans of any other Type into, LIBOR Advances, as the case may be, Eurodollar Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of Section 10.04 5.04 hereof shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this Section 5.01 (but without duplication), the Company shall pay directly to each Bank from time to time on request such amounts as such Bank may determine to be necessary to compensate such 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 such any Bank for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to this SectionSection 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 the Advances Loans or its obligation to make Loans, or on amounts receivable by it in respect of the AdvancesLoans, and of the amounts required to compensate such Bank under this SectionSection 5.01, shall be conclusive absent manifest error. Howeverconclusive, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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, provided that such Additional Costs have been incurred by such Bankdeterminations and allocations are made on a -------- reasonable basis.
Appears in 1 contract
Additional Costs. Borrower (i) shall pay directly to each Bank within ten subject any Lender (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 Bank may determine to be necessary to compensate it or its Applicable Lending Office for any increased costs which of such Bank determines are attributable Loans) to its making any tax, duty or maintaining any LIBOR Advance, or its obligation to convert any Base Advance to a LIBOR Advance hereunder, or any reduction in any amount receivable by such Bank hereunder other charge in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting from any Regulatory Change which:
(1) its Notes or changes the basis of taxation of any amounts payable to such Bank Lender under this Agreement or the its Notes in respect of any of such LIBOR Advances Loans (other than excluding changes in the rate of tax on the overall net income tax imposed on of such Bank Lender or its of such Applicable Lending Office by the jurisdiction in which such Bank Lender has its principal office or such Applicable Lending Office);; or
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than the Reserve Requirement utilized in the determination of the Eurodollar Rate for such Loan) relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank Lender (including including, without limitation, any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Eurodollar Base Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment commitment of a Banksuch Lender (including, without limitation, the Commitments of such Lender hereunder); or
(3iii) imposes any other condition affecting this Agreement or the its Notes (or any of such extensions of credit or liabilities) or its Commitments. If any Lender requests compensation from the Borrower under this Section 5.01(a). Without limiting , the effect of the provisions of the first paragraph of this SectionBorrower may, in the event that, by reason of any Regulatory Change, any Bank either (1) 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 Bank which includes deposits by reference to which the LIBOR Rate is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate or (2) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to Borrower such Lender (with a copy to the Administrative Agent), suspend the obligation of such Bank Lender thereafter to make or continueContinue Eurodollar Loans, or to convert Convert Base Advances intoRate Loans into Eurodollar Loans, LIBOR Advances, as until the case may be, shall be suspended until such Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of Section 10.04 5.04 hereof shall be applicable), provided that such suspension shall not affect the right of such -------- Lender to receive the compensation so requested.
(b) Without limiting the effect of the foregoing provisions of this Section 5.01 (but without duplication), the 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, 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 such Bank any Lender for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to paragraph (a) of this SectionSection 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 the Advances Loans or its obligation to make Loans, or on amounts receivable by it in respect of the AdvancesLoans, and of the amounts required to compensate such Bank Lender under this SectionSection 5.01, shall be conclusive absent manifest error. Howeverconclusive, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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, provided that such Additional Costs have been incurred by such Bankdeterminations and allocations are -------- made on a reasonable basis.
Appears in 1 contract
Additional Costs. (a) The Borrower shall pay directly to each 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), from time to time such amounts as such Bank may determine to be CREDIT AGREEMENT ---------------- necessary to compensate it for any increased costs which such Bank determines are attributable to its making or maintaining of any LIBOR Advance, Eurodollar Loans or its obligation to convert make any Base Advance to a LIBOR Advance Eurodollar Loans hereunder, or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR 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 which:
(1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the its Notes in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on or measured by the overall net income of such Bank or of its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);; or
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than the Reserve Requirement utilized in the determination of the Eurodollar Rate for such Loan) relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Eurodollar Base Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment commitment of a Banksuch Bank (including the Commitments of such Bank hereunder); or
(3iii) imposes any other condition affecting this Agreement or the its Notes (or any of such extensions of credit or liabilities) or Commitments. If any Bank requests compensation from the Borrower under this Section 5.01(a). , the Borrower may, by notice to such Bank (with a copy to the Agent), suspend the obligation of such Bank to make or Continue Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar Loans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of Section 5.04 hereof shall be applicable).
(b) Without limiting the effect of the provisions of the first paragraph of this SectionSection 5.01(a) hereof, in the event that, by reason of any Regulatory Change, any Bank either (1i) 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 Bank which includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate Eurodollar Loans or (2ii) becomes subject to restrictions on the amount of such a category of CREDIT AGREEMENT ---------------- liabilities or assets which it may hold, then, if such Bank so elects by notice to the Borrower (with a copy to Administrative the Agent), the obligation of such Bank to make or continueContinue, or to convert Convert Base Advances Rate Loans into, LIBOR Advances, as the case may be, Eurodollar Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of Section 10.04 5.04 hereof shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this Section 5.01 (but without duplication), the Borrower shall pay directly to each Bank from time to time on request such amounts as such Bank may determine to be necessary to compensate such 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 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 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).
(d) 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 (c) of this Section 5.01 as promptly as practicable, but in any event within 60 days, after such Bank obtains actual knowledge thereof; PROVIDED, however, that 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 PROVIDED, FURTHER, that 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 Borrower a certificate setting forth the basis and amount of each request by such Bank CREDIT AGREEMENT ---------------- for compensation under paragraph (a) or (c) of this Section 5.01. Determinations and allocations by such any Bank for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to this SectionSection 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 the Advances Loans or its obligation to make Loans, or on amounts receivable by it in respect of the AdvancesLoans, and of the amounts required to compensate such Bank under this SectionSection 5.01, shall be conclusive absent manifest error. Howeverconclusive, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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, PROVIDED that such Additional Costs have been incurred by such Bankdeterminations and allocations are made on a reasonable basis.
Appears in 1 contract
Additional Costs. Borrower 3.9.1. The Company shall pay directly to each 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), Lender from time to time such amounts as such Bank Lender may reasonably determine to be necessary to compensate it such Lender for any increased costs which that such Bank Lender determines are attributable to its making or maintaining of any LIBOR Advance, Eurodollar Loans or its obligation to convert make any Base Advance to a LIBOR Advance Eurodollar Loans hereunder, or any reduction in any amount receivable by such Bank Lender hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), solely to the extent resulting from any Regulatory Change whichthat:
3.9.1.1. shall subject any Lender (1or its Applicable Lending Office for any of such Loans) to any tax, duty or other charge in respect of such Loans or its Notes or changes the basis of taxation of any amounts payable to such Bank Lender under this Agreement or the its Notes in respect of any of such LIBOR Advances Loans (other than excluding changes in the rate of tax on the overall net income tax imposed on of such Bank Lender or its of such Applicable Lending Office by the jurisdiction in which such Bank Lender has its principal office or office, such Applicable Lending OfficeOffice or is otherwise doing business);; provided, however, that the Company shall be entitled to deduct and withhold taxes on interest payments to any Lender hereunder, and shall not be required to pay any Additional Costs to any Lender in respect thereof, to the extent such Additional Costs arise from such Lender's failure or inability to comply with the requirements of Section 5.07 hereof; or
(2) 3.9.1.2. imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than the Reserve Requirement utilized in the determination of the Eurodollar Rate for such Loan) relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank Lender (including including, without limitation, any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Eurodollar Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment commitment of a Banksuch Lender (including, without limitation, the Commitments of such Lender hereunder); or
(3) 3.9.1.3. imposes any other condition affecting this Agreement or the its Notes (or any of such extensions of credit or liabilities) or its Commitments. If any Lender requests compensation from the Company under this Section 5.01(a). Without limiting , the effect of the provisions of the first paragraph of this SectionCompany may, in the event that, by reason of any Regulatory Change, any Bank either (1) 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 Bank which includes deposits by reference to which the LIBOR Rate is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate or (2) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to Borrower such Lender (with a copy to Administrative the Agent), suspend the obligation of such Bank Lender thereafter to make or continueContinue Loans of the Type with respect to which such compensation is requested, or to convert Base Advances intoConvert Loans of any other Type into Loans of such Type, LIBOR Advances, as until the case may be, shall be suspended until such Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of Section 10.04 hereof shall be applicable). 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 Advances or on amounts receivable by it in respect of the Advances, and the amounts required to compensate such Bank under this Section, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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.28 24
Appears in 1 contract
Sources: Credit Agreement (Clientlogic Corp)
Additional Costs. (a) Borrower shall hereby agrees to pay directly to each 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), from time to time such amounts as such Bank may determine to be necessary to compensate it for any increased costs incurred by such Bank which such Bank determines are attributable to its making or maintaining any LIBOR Advance, Eurodollar Advances hereunder or its obligation to convert make any Base Advance to a LIBOR Advance of such Advances hereunder, or any reduction in any amount receivable by such 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 Costs"), resulting from any Regulatory Change which:
(1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the its Notes in respect of any of such LIBOR Advances (other than changes in the rate of income tax (1) taxes imposed on the overall net income of such Bank or its Applicable Lending Office by for any of such Advances, (2) franchise or similar taxes of such Bank, and (3) amounts withheld pursuant to the jurisdiction in which such Bank has its principal office or such Applicable Lending Officelast sentence of Section 3.7);
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio ratio, or similar requirements requirement relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities or commitments of, such Bank (including any LIBOR Advances or any deposits referred to in the definition of "LIBOR Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition Additional Cost affecting this Agreement or the Notes (or any of such extensions extensions, of credit or liabilitiesliabilities or commitments. Each Bank will notify 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 reduce 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 outside the United States of America. Each Bank will furnish 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 Bank requests compensation from Borrower under this Section 4.1(a), Borrower may, by notice to such Bank (with a copy to the Administrative Agent) suspend the obligation of such Bank to make or Continue making Eurodollar Advances until the Regulatory Change giving rise to such request ceases to be in effect (in which case such Bank's Eurodollar Advances shall be Converted to Alternate Base Rate Advances in accordance with the provisions of Section 4.4).
(b) Without limiting the effect of the foregoing provisions of the first paragraph of this SectionSection 4.1, in the event that, by reason of any Regulatory Change, any Bank either (1i) 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 Bank which includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Advances is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate Eurodollar Advances or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to Borrower (with a copy to the Administrative Agent), the obligation of such Bank to make or continue, or to convert Base Continue making Eurodollar Advances into, LIBOR Advances, as the case may be, hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case such Bank's Eurodollar Advances shall be Converted to Alternate Base Rate Advances in accordance with the provisions of Section 10.04 hereof shall be applicable4.4). .
(c) Determinations and allocations by such any Bank for purposes of this Section 4.1 of the effect of any Regulatory Change pursuant to this Section, on its costs or rate of return of maintaining the its obligations to make Advances or of making or maintaining Advances or on amounts receivable by it in respect of the Advances, and of the additional amounts required to compensate such Bank under this Sectionin respect of any Additional Costs, shall be conclusive conclusive, absent manifest error. However, to the extent Additional Costs relate to a Bank's loans in general error 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) as a result thereof the additional money that would otherwise be required to be 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 require 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, provided that such Additional Costs have been incurred by such Bankdeterminations and allocations are made on a reasonable basis.
Appears in 1 contract
Additional Costs. Borrower (a) The Borrowers shall pay directly to each Bank Lender from time to time within ten (10) days five Banking Days of a request for payment under this Section (which request shall be accompanied by a statement setting forth the basis for the request), demand therefore such amounts as such Bank Lender may reasonably determine to be necessary to compensate it for any increased costs which such Bank Lender determines are attributable to its making or maintaining any LIBOR Advance, Eurodollar Loans under this Agreement or its Note or its obligation to convert make any Base Advance to a LIBOR Advance such Loans hereunder, or any reduction in any amount receivable by such Bank Lender hereunder in respect of any of such LIBOR 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 which:
: (1i) changes the basis of taxation of any amounts payable to such Bank Lender under this Agreement or the Notes its Note in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on the overall net income of such Bank Lender or of its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank Lender has its principal office or such Applicable Lending Office);
; or (2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank Lender; or (including any LIBOR Advances or any deposits referred to in the definition of "LIBOR Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition affecting this Agreement or the Notes 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) as promptly as practicable after it obtains knowledge thereof and determines to request such compensation. If any Lender requests compensation from the Borrowers under this section 3.01(a), or under section 3.01(c), the Borrowers may, by notice to such Lender with a copy to the Agent, suspend the obligation of such Lender to make Loans of the type with respect to which such compensation is requested (in which case the provisions of section 3.04 shall be applicable).
(b) Without limiting the effect of the foregoing provisions of the first paragraph of this Sectionsection 3.01, in the event that, by reason of any Regulatory Change, any Bank Lender either (1i) 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 Bank Lender which includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank Lender which includes loans based on the LIBOR Rate Eurodollar Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank Lender so elects by notice to Borrower (the Borrowers with a copy to Administrative the Agent), the obligation of such Bank Lender to make or continue, or to convert Base Advances into, LIBOR Advances, as the case may be, 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 10.04 hereof section 3.04 shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this section 3.01 (but without duplication), the Borrowers shall pay directly to each Lender from time to time within five Banking Days of request therefore such amounts as such Lender may determine to be necessary to compensate such 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 such Bank a Lender for purposes of this Section section 3.01 of the effect of any Regulatory RegulatorY Change pursuant to this Sectionsubsections (a) or (b), or of the effect of capital maintained pursuant to subsection (c), on its costs of making or rate of return of maintaining the Advances Loans or its obligation to make Loans, or on amounts receivable by by, or the rate of return to, it in respect of the AdvancesLoans or such obligation, and of the additional amounts required to compensate such Bank Lender under this Sectionsection 3.01, shall be conclusive absent manifest error, provided that such determinations and allocations are made on a reasonable basis. However, Each Lender demanding payment from the Borrowers pursuant to this section 3.01 shall furnish 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 Borrowers at 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 time of such Bank if (a) as demand a result thereof statement showing the additional money that would otherwise be required to be paid in respect basiS for and the method of calculation 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 require 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 Bankdemand.
Appears in 1 contract
Additional Costs. (a) The Borrower shall pay directly to each 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), Lender from time to time such amounts as such Bank Lender may determine to be necessary to compensate it for any increased costs which such Bank Lender determines are attributable to its making or maintaining of any LIBOR Advance, Eurodollar Loans or its obligation to convert make any Base Advance to a LIBOR Advance Eurodollar Loans hereunder, or any reduction in any amount receivable by such Bank Lender hereunder in respect of any of such LIBOR 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 which:
(1) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the Notes in respect of any of such LIBOR Advances (other than changes in the rate of income tax imposed on such Bank or its Applicable Lending Office by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);
(2i) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than the Reserve Requirement utilized in the determination of the Eurodollar Rate for such Loan) relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank Lender (including any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Eurodollar Base Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment commitment of a Banksuch Lender (including the Commitments of such Lender hereunder); or
(3ii) imposes any other condition affecting this Agreement or the its Notes (or any of such extensions of credit or liabilities) or Commitments. If any Lender requests compensation from the Borrower under this Section 5.01(a). , the Borrower may, by notice to such Lender (with a copy to the Agent), suspend the obligation of such Lender to make or Continue Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar Loans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of Section 5.04 hereof shall be applicable).
(b) Without limiting the effect of the provisions of the first paragraph of this SectionSection 5.01(a) hereof, in the event that, by reason of any Regulatory Change, any Bank Lender either (1i) 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 Bank Lender which includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank Lender which includes loans based on the LIBOR Rate Eurodollar Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank Lender so elects by notice to the Borrower (with a copy to Administrative the Agent), the obligation of such Bank Lender to make or continueContinue, or to convert Convert Base Advances Rate Loans into, LIBOR Advances, as the case may be, Eurodollar Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of Section 10.04 5.04 hereof shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this Section 5.01 (but without duplication), the 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 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 such Bank any Lender for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to this SectionSection 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 the Advances Loans or its obligation to make Loans, or on amounts receivable by it in respect of the AdvancesLoans, and of the amounts required to compensate such Bank Lender under this SectionSection 5.01, shall be conclusive absent manifest error. Howeverconclusive, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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, PROVIDED that such Additional Costs have been incurred by such Bankdeterminations and allocations are made on a reasonable basis.
Appears in 1 contract
Additional Costs. Borrower (a) Subject to the requirements of clause (c) of this Section 2.14, each Mortgagor shall pay directly to each 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), Participant from time to time such amounts (if any) as such Bank Participant may determine to be necessary to compensate it such Participant for any increased increase in costs which that such Bank Participant reasonably determines are attributable to its making or maintaining any LIBOR Advance, of its participation in the Loans or its obligation to convert any Base Advance to a LIBOR Advance hereunderfunding arrangements utilized in connection with such participations, or any reduction in any amount receivable by such Bank Participant hereunder in respect of any of such LIBOR Advances participations or such obligation arrangements (such increases in costs and reductions in amounts receivable being herein called "“Additional Costs"”), in each case resulting from any Regulatory Change whichthat:
(1i) changes imposes any tax that is the basis of taxation functional equivalent of any amounts payable to such Bank under this Agreement reserve, special deposit or similar requirement of the Notes in respect of any of such LIBOR Advances sort covered by clause (other than changes in the rate of income tax imposed on such Bank or its Applicable Lending Office by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);ii) below; or
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (including any Reserve Requirement) relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances or any deposits referred to in the definition of "LIBOR Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment of a BankParticipant; or
(3iii) imposes any other condition affecting this Security Agreement or its participation in the Notes 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”) shall not be entitled to compensation for any Additional Costs in excess of the Additional Costs that would have been imposed on 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 Borrowers or (iii) in order to comply with any change in law or governmental requirement.
(b) Without limiting the effect of the foregoing provisions of this Section 2.14 (but without duplication), and subject to the first paragraph requirements of clause (c) of this SectionSection 2.14, each Mortgagor shall pay directly to each Participant from time to time on request such amounts (if any) as such Participant may determine to be necessary to compensate such 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 event thatsole opinion of such Participant, by reason result in any economic, operational legal or regulatory disadvantage to such Participant. Each Participant will furnish to the Borrowers a written confirmation of any Regulatory Changesuch additional costs, any Bank either which will set forth in reasonable detail (1i) incurs Additional Costs based on or measured by the excess above a specified level of 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 category statement that the determinations and allocations made in respect of deposits or other liabilities the additional costs comply with the provisions of such Bank which includes deposits by reference to which the LIBOR Rate is determined this Section 2.14, including as provided in the last proviso of this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate or paragraph (2) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to Borrower (with a copy to Administrative Agent), the obligation of such Bank to make or continue, or to convert Base Advances into, 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 10.04 hereof shall be applicablec). Determinations and allocations by such Bank any Participant for purposes of this Section 2.14 of the effect of any Regulatory Change pursuant to paragraph (a) of this SectionSection 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 Advances Loans or its funding thereof, or on amounts receivable by it in respect of the Advancesits participation, and of the amounts required to compensate such Bank Participant under this SectionSection 2.14, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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, provided that such Additional Costs have been incurred by such Bankdeterminations 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. Borrower (a) The Company shall pay directly to each 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), Lender from time to time such amounts as such Bank Lender may determine to be necessary to compensate it such Lender for any increased costs which that such Bank Lender determines are attributable to its making or maintaining of any LIBOR Advance, Eurodollar Loans or its obligation to convert make any Base Advance to a LIBOR Advance Eurodollar Loans hereunder, or any reduction in any amount receivable by such Bank Lender hereunder in respect of any of such LIBOR 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 whichthat:
(1i) changes shall subject any Lender (or its Applicable Lending Office for any of such Loans) to any tax, duty or other charge in respect of such Loans or its Revolving Credit Note or change the basis of taxation of any amounts payable to such Bank Lender under this Agreement or the Notes its Revolving Credit Note in respect of any of such LIBOR Advances Loans (other than excluding changes in the rate taxation of the overall net income tax imposed on of such Bank Lender or its of such Applicable Lending Office by the jurisdiction in which such Bank 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
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than the Reserve Requirement utilized in the determination of the Eurodollar Rate for such Loan) relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank Lender (including including, without limitation, any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Eurodollar Base Rate" in Section 1.01 hereof), or any Individual 364 Day Facility commitment of such Lender (including, without limitation, the Commitment of a Banksuch Lender hereunder); or
(3iii) imposes any other condition affecting this Agreement or the Notes its Revolving Credit Note (or any of such extensions of credit or liabilities) or its Commitment. If any Lender requests compensation from the Company under this Section 5.01(a). Without limiting , the effect of the provisions of the first paragraph of this SectionCompany may, in the event that, by reason of any Regulatory Change, any Bank either (1) 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 Bank which includes deposits by reference to which the LIBOR Rate is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate or (2) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to Borrower such Lender (with a copy to the Administrative Agent), suspend the obligation of such Bank Lender thereafter to make or continueContinue Eurodollar Loans, or to convert Convert Base Advances intoRate Loans into Eurodollar Loans, LIBOR Advances, as until the case may be, shall be suspended until such Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of Section 10.04 5.04 hereof shall be applicable), provided that such suspension shall not affect the right of such Lender to receive the compensation so requested.
(b) Without limiting the effect of the foregoing provisions of this Section 5.01 (but without duplication), the Company 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, 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 such Bank any Lender for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to paragraph (a) of this SectionSection 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 the Advances Loans or its obligation to make Loans, or on amounts receivable by it in respect of the AdvancesLoans, and of the amounts required to compensate such Bank Lender under this SectionSection 5.01, shall be conclusive absent manifest error. Howeverconclusive, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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, provided that such Additional Costs have been incurred by such Bankdeterminations and allocations are made on a reasonable basis.
Appears in 1 contract
Sources: Credit Agreement (Iridium World Communications LTD)
Additional Costs. Borrower 1) The Company shall pay directly to each 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), Funding Party from time to time such amounts as such Bank Funding Party may determine to be necessary to compensate it such Funding Party for any increased costs which actually incurred by such Bank Funding Party that such Funding Party determines are attributable to its making or maintaining of any LIBOR Advance, Eurodollar Advances or its obligation to convert make any Base Advance to a LIBOR Advance hereunderEurodollar Advances under the Operative Documents, or any reduction in any amount receivable by such Bank hereunder Funding Party under the Operative Documents 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 whichthat:
(1A) 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 Bank Funding Party under this Agreement or the Notes Operative Documents in respect of any of such LIBOR Advances Funded Amounts (other than excluding (A) franchise taxes imposed on it or (B) changes in the rate of tax on the overall net income tax imposed on of such Bank Funding Party or its of such Applicable Lending Office Office, in each case, by the jurisdiction in which such Bank Funding Party has its principal office or such Applicable Lending Office);; or
(2B) 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 Bank Funding Party (including including, without limitation, any LIBOR of such Advances or any deposits referred to in the definition of "LIBOR Eurodollar Rate" in Section 1.01 hereof), ") or any Individual 364 Day Facility Commitment commitment of a Banksuch Funding Party (including, without limitation, the Commitments of such Funding Party hereunder); or
(3C) imposes any other condition affecting this Agreement or the Notes 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 the first paragraph of this SectionSECTION 7.5(B), in the event that, by reason of any Regulatory Change, any Bank Funding Party either (1i) 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 Bank which Funding Party that includes deposits by reference to which the LIBOR Rate 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 Bank which Funding Party that includes loans based on the LIBOR Rate Eurodollar Advances or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which that it may hold, then, if such Bank Funding Party so elects by notice to Borrower the Company (with a copy to the Administrative Agent), the obligation of such Bank Funding Party to make or continue, or to convert Base Rate Advances into, LIBOR Advances, as the case may be, Eurodollar Advances hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of Section 10.04 SECTION 7.5(E) hereof shall be applicable). Determinations and allocations by such Bank for purposes of this Section of .
3) Without limiting the effect of any Regulatory Change pursuant the foregoing provisions of this SECTION 7.5(B) (but without duplication), the Company shall pay directly to this Section, each Funding Party from time to time on its costs or rate of return of maintaining the Advances or on request such amounts receivable by it in respect of the Advances, and the amounts required as such Funding Party may determine to be necessary to compensate such Bank under this Section, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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.such
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Additional Costs. (a) The Borrower shall pay directly the Bank from time to each 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), time such amounts as such the Bank may reasonably determine to be necessary to compensate it for any increased costs (not otherwise included in the Reserve Requirement) which such the Bank determines are attributable to its making or maintaining of any LIBOR AdvanceLoans or COF Loans, or its obligation to convert make any Base Advance to a LIBOR Advance hereunder, Loans hereunder or any reduction in any amount receivable by such the Bank hereunder in respect of any of such LIBOR Advances Loans or COF Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "“Additional Costs"”), resulting from any Regulatory Change which:
(1i) changes the basis of taxation of any amounts payable to such the Bank under this Agreement or the Notes Note in respect of any of such LIBOR Advances Loans or COF Loans (other than changes in the rate of income tax taxes imposed on the overall net income of the Bank for any of such Bank or its Applicable Lending Office by the jurisdiction in which such Bank has its principal office or such Applicable Lending OfficeLoans);; or
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such of the Bank (including any LIBOR Advances of such Loans, such obligations or any deposits referred to in the definition of "“LIBOR Base Rate" ” in Section 1.01 5.1 hereof), or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition affecting this Agreement or the Notes 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) as 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 the Bank requests compensation from the Borrower under this Section 1.12(a), the Borrower may, by notice to the Bank, suspend the obligation of the Bank to make additional Loans of the type with respect to 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 1.15 hereof shall be applicable).
(b) Without limiting the effect of the provisions of the first paragraph of this SectionSection 1.12(a) hereof, in the event that, by reason of any Regulatory Change, any the Bank either (1i) 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 the Bank which includes deposits by reference to which the interest rate on LIBOR Rate is Loans or COF Loans determined as provided in this Agreement or a category of extensions of credit or other assets of such the Bank which includes loans based on the LIBOR Rate Loans or COF Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such the Bank so elects by notice to Borrower (with a copy to Administrative Agent)the Borrower, the obligation of such the Bank to make additional LIBOR Loans or continue, or to convert Base Advances into, LIBOR Advances, as the case may be, COF Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of Section 10.04 1.15 hereof shall be applicable). .
(c) Determinations and allocations by such the Bank for purposes of this Section 1.12 of the effect of any Regulatory Change pursuant to this Section, on its costs of making or rate of return of maintaining the Advances LIBOR Loans or COF Loans or on amounts receivable by it in respect of the AdvancesLIBOR Loans or COF Loans its costs of maintaining its obligations to make LIBOR Loans, and of the additional amounts required to compensate such the Bank under this Sectionin respect of any Additional Costs, shall be conclusive absent manifest error. Howeverconclusive, 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 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 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 becomes aware 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 occurrence of an event or Bank be disadvantageous to 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) as a result thereof the additional money that would otherwise be required to be 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 require 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.
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Additional Costs. (a) The Borrower shall pay directly to each 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), from time to time on demand such amounts as such Bank may reasonably determine to be necessary to compensate it for any increased costs which such Bank determines are attributable to its making or maintaining any LIBOR Advance, Eurocurrency Loans under this Agreement or its Note or its obligation to convert make any Base Advance to a LIBOR Advance such Loans hereunder, or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting from any Regulatory Change Change, or any Reserve Requirement for any such Loans which:
: (1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the Notes its Note in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on the overall net income of such Bank or of its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);
; or (2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR LIBO Rate" in Section 1.01 hereof1.01), ; or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition affecting this Agreement or the Notes 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 the date that is 120 days prior to the date of demand by such Bank, whichever is later. If any Bank requests compensation from the Borrower under this section 3.01(a), or under section 3.01(c), the Borrower may, by notice to such Bank (with a copy to the Agent), suspend the obligation of such Bank to maintain Loans of the type with respect to which such compensation is requested (in which case the provisions of section 3.04 shall be applicable).
(b) Without limiting the effect of the foregoing provisions of the first paragraph of this SectionSection 3.01, in the event that, by reason of any Regulatory Change, any Bank either (1i) 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 Bank which includes deposits by reference to which the LIBOR Rate interest rate on Eurocurrency Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate Eurocurrency Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to the Borrower (with a copy to Administrative the Agent), the obligation of such Bank to make or continue, or to convert Base Advances into, LIBOR Advances, as the case may be, 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 10.04 hereof 3.04 shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this Section 3.01 (but without duplication), the Borrower shall pay directly to each Bank from time to time on request such amounts as such Bank may reasonably determine to be necessary to compensate such 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 such a Bank for purposes of this Section 3.01 of the effect of any Regulatory Change pursuant to this Sectionsubsections (a) or (b), or of the effect of capital maintained pursuant to subsection (c), on its costs of making or rate of return of maintaining the Advances Loans or its obligation to make Loans, or on amounts receivable by by, or the rate of return to, it in respect of the AdvancesLoans or such obligation, and of the additional amounts required to compensate such Bank under this SectionSection 3.01, shall be conclusive absent manifest error. Howeverconclusive, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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, provided that such Additional Costs have been incurred by such Bankdeterminations and allocations are made on a reasonable basis.
Appears in 1 contract
Additional Costs. Borrower (a) The Borrowers shall pay directly to each Bank Lender from time to time within ten (10) days five Banking Days of a request for payment under this Section (which request shall be accompanied by a statement setting forth the basis for the request), demand therefor such amounts as such Bank Lender may reasonably determine to be necessary to compensate it for any increased costs which such Bank Lender determines are attributable to its making or maintaining any LIBOR Advance, Eurodollar Loans under this Agreement or its Note or its obligation to convert make any Base Advance to a LIBOR Advance such Loans hereunder, or any reduction in any amount receivable by such Bank Lender hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting from any Regulatory Change which:
: (1i) changes the basis of taxation of any amounts payable to such Bank Lender under this Agreement or the Notes its Note in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on the overall net income of such Bank Lender or of its Applicable Lending Office for any of such Loans 39 41 by the jurisdiction in which such Bank Lender has its principal office or such Applicable Lending Office);
; or (2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank Lender; or (including any LIBOR Advances or any deposits referred to in the definition of "LIBOR Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition affecting this Agreement or the Notes 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) as promptly as practicable after it obtains knowledge thereof and determines to request such compensation. If any Lender requests compensation from the Borrowers under this Section 3.01(a), or under Section 3.01(c), the Borrowers may, by notice to such Lender with a copy to the Agent, suspend the obligation of such Lender to make Loans of the type with respect to which such compensation is requested (in which case the provisions of Section 3.04 shall be applicable).
(b) Without limiting the effect of the foregoing provisions of the first paragraph of this SectionSection 3.01, in the event that, by reason of any Regulatory Change, any Bank Lender either (1i) 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 Bank Lender which includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank Lender which includes loans based on the LIBOR Rate Eurodollar Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank Lender so elects by notice to Borrower (the Borrowers with a copy to Administrative the Agent), the obligation of such Bank Lender to make or continue, or to convert Base Advances into, LIBOR Advances, as the case may be, 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 10.04 hereof 3.04 shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this Section 3.01 (but without duplication), the Borrowers shall pay directly to each Lender from time to time within five Banking Days of request therefor such amounts as such Lender may determine to be necessary to compensate such 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 such Bank a Lender for purposes of this Section 3.01 of the effect of any Regulatory Change pursuant to this Sectionsubsections (a) or (b), or of the effect of capital maintained pursuant to subsection (c), on its costs of making or rate of return of maintaining the Advances Loans or its obligation to make Loans, or on amounts receivable by by, or the rate of return to, it in respect of the AdvancesLoans or such obligation, and of the additional amounts required to compensate such Bank Lender under this SectionSection 3.01, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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, provided that such Additional Costs have been incurred by such Bank.determinations and allocations are made on a reasonable basis. Each Lender demanding payment from the
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Additional Costs. (a) The Borrower shall pay directly to each Bank within ten (10) days Lender from time to time, promptly upon the request of a request for payment under this Section (which request shall be accompanied such Lender delivered to the Administrative Agent, and further delivered to the Borrower by a statement setting forth the basis for Administrative Agent, the request), costs incurred by such amounts as such Bank may determine to be necessary to compensate it for any increased costs Lender which such Bank Lender determines are attributable to its making or maintaining of any LIBOR Advance, Eurodollar Loans or its obligation to convert make any Base Advance to a LIBOR Advance hereunderof such Loans, or any reduction in any amount receivable by such Bank Lender hereunder in respect of any of such LIBOR Advances Loans or such obligation obligations (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), ---------------- resulting from any Regulatory Change which:
(1i) changes the basis of taxation of any amounts payable to such Bank Lender under this Agreement or the its Notes in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on the overall net income of such Bank Lender or its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank Lender has its principal office or such Applicable Lending Office);
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements requirement relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities or commitments of, such Bank Lender (including any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Eurodollar Rate" in Section 1.01 1.1 hereof, ----------- but excluding the Reserve Requirement to the extent it is included in the calculation of the Adjusted Eurodollar Rate), or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition affecting this Agreement or the Notes (or any of such extensions of credit or liabilitiesliabilities or commitments contemplated hereunder or thereunder.
Section 4.1 (a). , the Borrower may, by notice to the Administrative Agent, who ------------- shall promptly deliver a copy of such notice to such Lender, suspend the obligation of such Lender to make or Continue making, or Convert Base Rate Loans into, Eurodollar Loans until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of Section 4.4 hereof shall ----------- be applicable).
(b) Without limiting the effect of the foregoing provisions of the first paragraph of this SectionSection 4.1, in the event that, by reason of any Regulatory Change, any Bank Lender ----------- either (1i) 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 Bank which includes deposits by reference to which the LIBOR Rate is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate or liabilities
(2c) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to Borrower (with a copy to Administrative Agent), the obligation of such Bank to make or continue, or to convert Base Advances into, 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 10.04 hereof shall be applicable). Determinations and allocations by such Bank any Lender for purposes of this Section 4.1 of the effect of any Regulatory Change pursuant to this Section, on its costs or rate of return of maintaining the Advances its obligation to make Loans or of making or maintaining Loans or on amounts receivable by it in respect of Loans and of the Advances, and the additional amounts required to compensate such Bank under this SectionLender in respect of any Additional Costs, shall be conclusive absent in the absence of 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) as a result thereof the additional money that would otherwise be required to be 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 require 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, provided that such Additional Costs have been incurred by such Bankdeterminations and allocations are made on a reasonable basis.
Appears in 1 contract
Sources: Credit Agreement (Cais Internet Inc)
Additional Costs. Borrower shall pay directly to each Bank within ten (10a) days of a request for payment under this Section (which request shall be accompanied by a statement setting forth If the basis for the request), such amounts as such Bank may determine to be necessary to compensate it for any increased costs which such Bank determines are attributable to its making or maintaining any LIBOR Advance, or its obligation to convert any Base Advance to a LIBOR Advance hereunderadoption 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 Bank hereunder in Lender with any request or directive (whether 58 -52- or not having the force of law) from any central bank or other Governmental Authority or the NAIC made subsequent to the Original Closing Date (or, with respect to the Existing Letters of Credit, made subsequent to their date of issuance (without regard to any deemed issuance on the Original Closing Date for purposes of Section 2.03) if before the Original Closing Date.
(i) shall subject any Lender to any tax of any kind whatsoever with respect to this Agreement, any Note, any Letter of such Credit or any Lender's participation therein, any Letter of Credit Document or any LIBOR Advances Loan made by it or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting from any Regulatory Change which:
(1) changes change the basis of taxation of any amounts payable payments to such Bank under this Agreement or the Notes Lender in respect of any of such LIBOR Advances thereof (other than except for taxes covered by Section 5.06 and changes in the rate of tax on the overall net income tax imposed on of such Bank or its Applicable Lending Office by the jurisdiction in which such Bank has its principal office or such Applicable Lending OfficeLender);
(2ii) imposes shall impose, modify or modifies or deems hold applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio compulsory loan or similar requirements relating to any requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit of the type specified herein or other assets ofby, or any deposits with or other liabilities ofacquisition of funds by, any office of such Bank (including any LIBOR Advances or any deposits referred to Lender which is not otherwise included in the definition determination of "the LIBOR Rate" in Section 1.01 hereof)Rate hereunder, or including, without limitation, the imposition of any Individual 364 Day Facility Commitment of a Bankreserves with respect to the Eurocurrency Liabilities under Regulation D; or
(3iii) imposes shall impose on such Lender any other condition affecting condition; and the result of any of the foregoing is to increase the cost to such Lender, by an amount which such 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 promptly pay such Lender, upon its demand, any additional amounts necessary to compensate such Lender for such increased cost or reduced amount receivable. If any Lender becomes entitled to claim any additional amounts pursuant to this subsection, it shall promptly notify Borrower, through the Administrative Agent, of the event by reason of which it has become so entitled. A certificate as to any additional amounts pursuant to this Section 5.01 submitted by such 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 or and the payment of the Notes all other amounts payable hereunder.
(b) In the event that any Lender shall have determined that the adoption of any law, rule, regulation or guideline regarding capital adequacy (or any change therein or in the interpretation or application thereof) or compliance by any Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of such extensions law) from any central bank or Governmental Authority, including, without limitation, the issuance of credit any final rule, regulation or liabilities). Without limiting guideline, does or shall have the effect of reducing the provisions rate of the first paragraph return on such Lender's or such corporation's capital as a consequence of this Sectionits obligations hereunder or under any Letter of Credit to a level below that which such Lender or such corporation could have achieved but for such adoption, in the event thatchange or compliance (taking into consideration such Lender's or such corporation's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, then from time to time, after submission by reason of any Regulatory Change, any Bank either (1) 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 Bank which includes deposits by reference to which the LIBOR Rate is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate or (2) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice Lender to Borrower (with a copy to the Administrative Agent)) of a written request therefor, Borrower shall promptly pay to such Lender such additional amount or amounts as will compensate such Lender for such reduction.
(c) Each Lender shall notify Borrower of any event occurring after the obligation date of this Agreement that will entitle such Bank Lender to make compensation under paragraph (a) or continue, or to convert Base Advances into, 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 10.04 hereof shall be applicable). Determinations and allocations by such Bank for purposes b) of this Section 5.01 as promptly as practicable, but in any event within 120 days after such Lender obtains actual knowledge thereof; provided, however, that if any Lender fails to give such notice within 120 days after it obtains actual knowledge of the effect of any Regulatory Change such an event, such Lender shall, with respect to compensation payable pursuant to this Section, on its costs or rate of return of maintaining the Advances or on amounts receivable by it Section 5.01 in respect of the Advancesany costs resulting from such event, and the amounts required only be entitled to compensate such Bank payment under this Section, shall be conclusive absent manifest error. However, Section 5.01 for costs incurred from and after the date 120 days prior to the extent Additional Costs relate date that such Lender does give such notice. Each Lender will furnish to Borrower a Bank's loans in general certificate setting forth the basis, amount and not specifically to a Loan hereunder, reasonable detail of computation of each request by 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 Lender for compensation 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 paragraph (a) as a result thereof the additional money that would otherwise be required to be paid in respect of such Advance could be reduced and or (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 require 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 5.01, which such Additional Costs are actually incurred by such Bankcertificate shall, or (2) the date on which such Bank knowsexcept for demonstrable error, or should have knownbe final, that such Additional Costs have been incurred by such Bankconclusive and binding for all purposes.
Appears in 1 contract
Additional Costs. (i) The Borrower shall pay directly to each 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), from time to time such amounts as such Bank may determine to be necessary to compensate it for any increased costs incurred by such Bank which such Bank determines are attributable to its making or maintaining any LIBOR Advance, Loans or its obligation to convert any Base Advance to a LIBOR Advance hereunder, Total Commitment hereunder or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR Advances Loans or such obligation Total Commitments (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting from any Regulatory Change which:
: (1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the Notes its Note in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on the overall net income of such Bank or its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);
; or (2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances or any deposits referred to in the definition of "LIBOR Base Rate" in Section 1.01 Article 1 hereof), ; or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition conditions affecting this Agreement in respect of the 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 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 each request for 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 Notes case may be, in accordance with Sections 2.8 and 2.23 hereof.
(or any of such extensions of credit or liabilities). ii) Without limiting the effect of the foregoing provisions of the first paragraph of this SectionSection 2.20, in the event that, by reason of any Regulatory Change, any Bank either (1i) 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 Bank which includes deposits by reference to which the interest rate on LIBOR Rate Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to the Borrower (with a copy to Administrative the Agent), the obligation of such Bank to make or continuemake, or and to convert Base Advances Loans of any other type into, LIBOR Advances, as the case may be, 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 10.04 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). Determinations .
(b) If any existing or future law or regulation or the 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 allocations the result thereof is to impose upon such Bank or increase any capital requirement applicable as a result of the making or maintenance of such 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 (a copy of which demand shall be delivered to the Agent), the Borrower shall immediately pay to the Bank from time to time specified by the Bank, such additional fees as shall be sufficient to compensate the 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 pursuant to this Section, on its costs of making or rate of return of maintaining the Advances Loans or on amounts receivable by it in respect of the AdvancesLoans, and of the additional amounts required to compensate such Bank under this Sectionin respect of any Additional Costs, shall be conclusive 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) as a result thereof the additional money that would otherwise be required to be 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 require 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: Loan Agreement (National Consumer Cooperative Bank /Dc/)
Additional Costs. Borrower (a) The Borrowers shall pay directly to each Bank Lender from time to time within ten (10) days five Banking Days of a request for payment under this Section (which request shall be accompanied by a statement setting forth the basis for the request), demand therefor such amounts as such Bank Lender may reasonably determine to be necessary to compensate it for any increased costs which such Bank Lender determines are attributable to its making or maintaining any LIBOR Advance, Eurodollar Loans under this Agreement or its Note or its obligation to convert make any Base Advance to a LIBOR Advance such Loans hereunder, or any reduction in any amount receivable by such Bank Lender hereunder in respect of any of such LIBOR 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 which:
: (1i) changes the basis of taxation of any amounts payable to such Bank Lender under this Agreement or the Notes its Note in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on the overall net income of such Bank Lender or of its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank Lender has its principal office or such Applicable Lending Office);
; or (2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank Lender; or (including any LIBOR Advances or any deposits referred to in the definition of "LIBOR Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition affecting this Agreement or the Notes 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) as promptly as practicable after it obtains knowledge thereof and determines to request such compensation. If any Lender requests compensation from the Borrowers under this Section 3.01(a), or under Section 3.01(c), the Borrowers' Agent may, by notice to such Lender with a copy to the Agent, suspend the obligation of such Lender to make Loans of the type with respect to which such compensation is requested (in which case the provisions of Section 3.04 shall be applicable).
(b) Without limiting the effect of the foregoing provisions of the first paragraph of this SectionSection 3.01, in the event that, by reason of any Regulatory Change, any Bank Lender either (1i) 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 Bank Lender which includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank Lender which includes loans based on the LIBOR Rate Eurodollar Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank Lender so elects by notice to Borrower (the Borrowers' Agent with a copy to Administrative the Agent), the obligation of such Bank Lender to make or continue, or to convert Base Advances into, LIBOR Advances, as the case may be, 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 10.04 hereof 3.04 shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this Section 3.01 (but without duplication), the Borrowers shall pay directly to each Lender from time to time within five Banking Days of request therefor such amounts as such Lender may determine to be necessary to compensate such 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 36 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 such Bank a Lender for purposes of this Section 3.01 of the effect of any Regulatory Change pursuant to this Sectionsubsections (a) or (b), or of the effect of capital maintained pursuant to subsection (c), on its costs of making or rate of return of maintaining the Advances Loans or its obligation to make Loans, or on amounts receivable by by, or the rate of return to, it in respect of the AdvancesLoans or such obligation, and of the additional amounts required to compensate such Bank Lender under this SectionSection 3.01, shall be conclusive absent manifest errorconclusive, provided that such determinations and allocations are made on a reasonable basis. However, Each Lender demanding payment from the Borrowers pursuant to this Section 3.01 shall furnish 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 Borrowers at 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 time of such Bank if (a) as demand a result thereof statement showing the additional money that would otherwise be required to be paid in respect basis for and the method of calculation 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 require 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 Bankdemand.
Appears in 1 contract
Additional Costs. The Borrower shall pay directly to each 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), from time to time such amounts as such Bank may reasonably determine to be necessary to compensate it such Bank for any increased costs which that such Bank determines are attributable to its making or maintaining of any LIBOR Advance, Eurodollar Loans or its obligation to convert make any Base Advance Eurodollar Loans to a LIBOR Advance the Borrower hereunder, or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting from any Regulatory Change whichthat:
(1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the Notes in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on or measured by the overall net income of such Bank or of its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);; or
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than the Reserve Requirement utilized in the determination of the Fixed Base Rate for such Loan) relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including including, without limitation, any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Fixed Base Rate" in in
Section 1.01 hereof), or any Individual 364 Day Facility commitment of such Bank (including, without limitation, the Commitment of a Banksuch Bank hereunder); or
(3iii) imposes any other condition affecting this Agreement or the Notes (or any of such extensions of credit or liabilities)) or its Commitment. Without limiting the effect of the provisions of the first paragraph of this Section, in the event that, by reason of any Regulatory Change, If any Bank either (1) incurs Additional Costs based on or measured by requests compensation from the excess above a specified level of Borrower under this Section 5.01(a), the amount of a category of deposits or other liabilities of such Bank which includes deposits by reference to which the LIBOR Rate is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate or (2) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may holdBorrower may, then, if such Bank so elects by notice to Borrower such Bank (with a copy to the Administrative Agent), suspend the obligation of such Bank thereafter to make or continueContinue Loans of the Type with respect to which such compensation is requested, or to convert Base Advances intoConvert Loans of any other Type into Loans of such Type, LIBOR Advances, as until the case may be, shall be suspended until such Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of Section 10.04 5.04 hereof shall be applicable). Determinations and allocations by , provided that such Bank for purposes of this Section of suspension shall not affect the effect of any Regulatory Change pursuant to this Section, on its costs or rate of return of maintaining the Advances or on amounts receivable by it in respect of the Advances, and the amounts required to compensate such Bank under this Section, 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 right of such Bank if (a) as a result thereof to receive the additional money that would otherwise be required to be 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 require 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 Bankcompensation so requested.
Appears in 1 contract
Additional Costs. (a) The Borrower shall pay directly to each 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), from time to time such amounts as such Bank may determine to be CREDIT AGREEMENT necessary to compensate it for any increased costs which such Bank determines are attributable to its making or maintaining of any LIBOR Advance, Eurodollar Loans or its obligation to convert make any Base Advance to a LIBOR Advance Eurodollar Loans hereunder, or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR 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 which:
(1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the its Notes in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on or measured by the overall net income of such Bank or of its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);; or
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than the Reserve Requirement utilized in the determination of the Eurodollar Rate for such Loan) relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Eurodollar Base Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment commitment of a Banksuch Bank (including the Commitments of such Bank hereunder); or
(3iii) imposes any other condition affecting this Agreement or the its Notes (or any of such extensions of credit or liabilities) or Commitments. If any Bank requests compensation from the Borrower under this Section 5.01(a). , the Borrower may, by notice to such Bank (with a copy to the Agent), suspend the obligation of such Bank to make or Continue Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar Loans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of Section 5.04 hereof shall be applicable).
(b) Without limiting the effect of the provisions of the first paragraph of this SectionSection 5.01(a) hereof, in the event that, by reason of any Regulatory Change, any Bank either (1i) 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 Bank which includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate Eurodollar Loans or (2ii) becomes subject to restrictions on the amount of such a category of CREDIT AGREEMENT liabilities or assets which it may hold, then, if such Bank so elects by notice to the Borrower (with a copy to Administrative the Agent), the obligation of such Bank to make or continueContinue, or to convert Convert Base Advances Rate Loans into, LIBOR Advances, as the case may be, Eurodollar Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of Section 10.04 5.04 hereof shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this Section 5.01 (but without duplication), the Borrower shall pay directly to each Bank from time to time on request such amounts as such Bank may determine to be necessary to compensate such 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 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 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).
(d) 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 (c) of this Section 5.01 as promptly as practicable, but in any event within 60 days, after such Bank obtains actual knowledge thereof; PROVIDED, however, that 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 PROVIDED, FURTHER, that 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 Borrower a certificate setting forth the basis and amount of each request by such Bank CREDIT AGREEMENT for compensation under paragraph (a) or (c) of this Section 5.01. Determinations and allocations by such any Bank for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to this SectionSection 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 the Advances Loans or its obligation to make Loans, or on amounts receivable by it in respect of the AdvancesLoans, and of the amounts required to compensate such Bank under this SectionSection 5.01, shall be conclusive absent manifest error. Howeverconclusive, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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, PROVIDED that such Additional Costs have been incurred by such Bankdeterminations and allocations are made on a reasonable basis.
Appears in 1 contract
Additional Costs. (a) Lender will use reasonable efforts (consistent with legal and regulatory restrictions) to maintain the availability of the Floating Interest Rate Loan and to avoid or reduce any increased or additional costs payable by Borrower shall under Section 2.2.3, including, if requested by Borrower, a transfer or assignment of the Loan to a branch, office or Affiliate of Lender in another jurisdiction, or 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 additional costs, expenses or risk to Lender that are not reimbursed by Borrower and (b) would not be disadvantageous in any other respect to Lender (including the effect on any Securitization) as determined by Lender in its reasonable discretion.
(b) If Lender requests compensation under Section 2.2.3, or if Borrower is required to pay directly any Indemnified Taxes or additional amounts to Lender or any Governmental Authority for the account of Lender pursuant to Section 2.7 and, in each Bank within ten 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 (10other than its existing rights to payments pursuant to Section 2.2.3 or Section 2.7) days of a request for payment and obligations under this Section (which request shall be accompanied Agreement and the related Loan Documents to another Lender designated by a statement setting forth the basis for the request), such amounts as such Bank may determine to be necessary to compensate it for any increased costs which such Bank determines are attributable to its making or maintaining any LIBOR Advance, or its obligation to convert any Base Advance to a LIBOR Advance hereunder, or any reduction in any amount receivable by such 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 Costs"), resulting from any Regulatory Change whichBorrower; provided that:
(1i) changes The assigning Lender shall have received payment of an amount equal to the basis outstanding principal of taxation its ratable portion of any the Loan, accrued interest thereon, accrued fees and all other amounts payable to such Bank it hereunder and under this Agreement or the Notes in respect of any other Loan Documents from the assignee (to the extent of such LIBOR Advances outstanding principal and accrued interest and fees) or Borrower (other than changes in the rate case of income tax imposed on such Bank or its Applicable Lending Office by the jurisdiction in which such Bank has its principal office or such Applicable Lending Officeall other amounts);
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances or any deposits referred to in the definition of "LIBOR Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment of a Bank; or
(3) imposes any other condition affecting this Agreement or the Notes (or any of such extensions of credit or liabilities). Without limiting the effect of the provisions of the first paragraph of this Section, in the event that, by reason case of any Regulatory Change, any Bank either (1) incurs Additional Costs based on such assignment resulting from a claim for compensation under Section 2.2.3 or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Bank which includes deposits by reference to which the LIBOR Rate is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate or (2) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to Borrower (with a copy to Administrative Agent), the obligation of such Bank to make or continue, or to convert Base Advances into, 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 10.04 hereof shall be applicable). 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 Advances or on amounts receivable by it in respect of the Advances, and the amounts required to compensate such Bank under this Section, 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) as a result thereof the additional money that would otherwise be payments required to be paid made pursuant to Section 2.7, such assignment will result in respect a reduction in such compensation or payments thereafter;
(iii) such 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 demand by Borrower for Lender to so assign all of such Advance could be reduced its rights 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 require Borrower to pay Additional Costs obligations 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 BankAgreement shall thereupon be deemed withdrawn.
Appears in 1 contract
Additional Costs. Borrower (a) The Company shall pay directly to each 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), from time to time such amounts as such Bank may reasonably determine to be necessary to compensate it such Bank for any increased costs which that such Bank determines are attributable to its making or maintaining of any LIBOR Advance, Fixed Rate Loans or its obligation to convert make any Base Advance to a LIBOR Advance Fixed Rate Loans hereunder, or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting from any Regulatory Change whichthat:
(1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the its Notes in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on or measured by the overall net income of such Bank or of its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);; or
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than the Reserve Requirement utilized in the determination of the Fixed Base Rate for such Loan) relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including including, without limitation, any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Fixed Base Rate" in Section 1.01 hereof), or any Individual 364 Day Facility commitment of such Bank (including, without limitation, the Commitment of a Banksuch Bank hereunder); or
(3iii) imposes any other condition affecting this Agreement or the its Notes (or any of such extensions of credit or liabilities) or its Commitment. If any Bank requests compensation from the Company under this Section 5.01(a). , the Company may, by notice to such Bank (with a copy to the Administrative Agent), suspend the obligation of such Credit Agreement Bank thereafter to make or Continue Loans of the Type with respect to which such compensation is requested, or to Convert Loans of any other Type into Loans of such Type, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of Section 5.04 hereof shall be applicable), provided that such suspension shall not affect the right of such Bank to receive the compensation so requested.
(b) Without limiting the effect of the provisions of the first paragraph (a) of this SectionSection 5.01, in the event that, by reason of any Regulatory Change, any Bank either (1i) 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 Bank which that includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which that includes loans based on the LIBOR Rate Eurodollar Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which that it may hold, then, if such Bank so elects by notice to Borrower the Company (with a copy to the Administrative Agent), the obligation of such Bank to make or continueContinue, or to convert Base Advances Convert Loans of any other Type into, LIBOR Advances, as the case may be, Loans of such Type hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of Section 10.04 5.04 hereof shall be applicable). Determinations and allocations by such Bank for purposes .
(c) Without limiting the effect of the foregoing provisions of this Section of 5.01 (but without duplication), the effect of any Regulatory Change pursuant Company shall pay directly to this Section, each Bank from time to time on its costs or rate of return of maintaining the Advances or on request such amounts receivable by it in respect of the Advances, and the amounts required as such Bank may reasonably determine to be necessary to compensate such Bank under this Section(or, shall be conclusive absent manifest error. Howeverwithout duplication, 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 bank holding company 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) as a result thereof the additional money that would otherwise be required to be 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 require 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, is a subsidiary) for any costs that such Additional Costs have been incurred it determines are attributable to the maintenance by such BankBank (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 (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 Credit Agreement
Appears in 1 contract
Sources: Credit Agreement (Bowater Inc)
Additional Costs. Borrower (a) The Borrowers shall pay directly to each 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), Lender from time to time on demand such amounts as such Bank Lender may determine to be necessary to compensate it for any increased costs which such Bank Lender determines are attributable to its making or maintaining any LIBOR Advance, Eurodollar Loans under this Agreement or its Notes or its obligation to convert make any Base Advance to a LIBOR Advance such Loans hereunder, or any reduction in any amount receivable by such Bank Lender hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting from any Regulatory Change which:
: (1i) changes the basis of taxation of any amounts payable to such Bank Lender under this Agreement or the its Notes in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on the overall net income of such Bank Lender or of its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank Lender has its principal office or such Applicable Lending Office);
; or (2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank Lender (including any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Eurodollar Base Rate" in Section 1.01 hereof1.01), ; or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition affecting this Agreement or the its Notes (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 6.01 (a) as promptly as practicable after it obtains knowledge thereof and determines to request such compensation. If any Lender requests compensation from the Borrowers under this Section 6.01(a), or under Section 6.01(c), the Borrowers may, by notice to such Lender (with a copy to the Agent), require that such Lender's Loans of the type with respect to which such compensation is requested be converted in accordance with Section 6.04.
(b) Without limiting the effect of the foregoing provisions of the first paragraph of this SectionSection 6.01, in the event that, by reason of any Regulatory Change, any Bank Lender either (1i) 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 Bank Lender which includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank Lender which includes loans based on the LIBOR Rate Eurodollar Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank Lender so elects by notice to Borrower the Borrowers (with a copy to Administrative the Agent), the obligation of such Bank Lender to make or continuerenew, or and to convert Base Advances Loans of any other type into, LIBOR Advances, as the case may be, 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 Lender then outstanding shall be converted in which case accordance with Section 6.04).
(c) Without limiting the effect of the foregoing provisions of this Section 10.04 hereof 6.01 (but without duplication), the Borrowers shall pay directly to each Lender from time to time on request such amounts as such Lender may determine to be applicablenecessary to compensate such Lender 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 or participation in Letters of Credit 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 such 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 it is entitled to compensation pursuant to this Section 6.01(c) as promptly as practicable after it determines to request such compensation.
(d) Determinations and allocations by such Bank a Lender for purposes of this Section 6.01 of the effect of any Regulatory Change pursuant to this Sectionsubsections (a) or (b), or of the effect of capital maintained pursuant to subsection (c), on its costs of making or rate of return of maintaining the Advances Loans or its obligation to make Loans, or on amounts receivable by by, or the rate of return to, it in respect of the AdvancesLoans or such obligation, and of the additional amounts required to compensate such Bank Lender under this SectionSection 6.01, shall be conclusive absent manifest error. Howeverconclusive, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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, provided that such Additional Costs have been incurred by such Bankdeterminations and allocations are made on a reasonable basis.
Appears in 1 contract
Additional Costs. (a) The Borrower shall pay directly to each 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), from time to time on demand such amounts as such Bank may reasonably determine to be necessary to compensate it for any increased costs which such Bank determines are attributable to its making or maintaining any LIBOR Advance, Eurodollar Loans under this Agreement or its Note or its obligation to convert make any Base Advance to a LIBOR Advance such Loans hereunder, or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting from any Regulatory Change Change, or any Reserve Requirement for any such Loans which:
: (1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the Notes its Note in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on the overall net income of such Bank or of its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);
; or (2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Base Rate" in Section 1.01 hereof1.01), ; or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition affecting this Agreement or the Notes 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 the date that is 120 days prior to the date of demand by such Bank, whichever is later. If any Bank requests compensation from the Borrower under this section 3.01(a), or under section 3.01(c), the Borrower may, by notice to such Bank (with a copy to the Agent), suspend the obligation of such Bank to maintain Loans of the type with respect to which such compensation is requested (in which case the provisions of section 3.04 shall be applicable).
(b) Without limiting the effect of the foregoing provisions of the first paragraph of this SectionSection 3.01, in the event that, by reason of any Regulatory Change, any Bank either (1i) 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 Bank which includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate Eurodollar Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to the Borrower (with a copy to Administrative the Agent), the obligation of such Bank to make or continue, or to convert Base Advances into, LIBOR Advances, as the case may be, 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 10.04 hereof 3.04 shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this Section 3.01 (but without duplication), the Borrower shall pay directly to each Bank from time to time on request such amounts as such Bank may reasonably determine to be necessary to compensate such 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 such a Bank for purposes of this Section 3.01 of the effect of any Regulatory Change pursuant to this Sectionsubsections (a) or (b), or of the effect of capital maintained pursuant to subsection (c), on its costs of making or rate of return of maintaining the Advances Loans or its obligation to make Loans, or on amounts receivable by by, or the rate of return to, it in respect of the AdvancesLoans or such obligation, and of the additional amounts required to compensate such Bank under this SectionSection 3.01, shall be conclusive absent manifest error. Howeverconclusive, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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, provided that such Additional Costs have been incurred by such Bankdeterminations and allocations are made on a reasonable basis.
Appears in 1 contract
Additional Costs. Borrower (a) The Company shall pay directly to each 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), Lender from time to time such amounts as such Bank Lender may reasonably and in good faith determine to be necessary to compensate it such Lender for any increased costs which that such Bank Lender reasonably and in good faith determines are attributable to its making or maintaining of any LIBOR Advance, Eurodollar Loans or its obligation to convert make any Base Advance to a LIBOR Advance Eurodollar Loans hereunder, or any reduction in any amount receivable by such Bank Lender hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting from any Regulatory Change whichthat:
(1i) changes the basis of taxation of any amounts payable to such Bank Lender under this Agreement or the Notes its Note in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on or measured by the overall net income of such Bank Lender or of its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank Lender has its principal office or such Applicable Lending Office);; or
(2ii) 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 Lender for any period as to which the Company is required to pay any amount under paragraph (e) below, the reserves against "Eurocurrency liabilities" under Regulation D therein referred to) relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank Lender (including including, without limitation, any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Eurodollar Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment commitment of a Banksuch Lender hereunder (including, without limitation, the Commitments of such Lender); or
(3iii) imposes any other condition affecting this Agreement or the Notes its Note (or any of such extensions of credit or liabilities) or its Commitments. If any Lender requests compensation from the Company under this Section 5.01(a). , the Company may, by notice to such Lender (with a copy to the Administrative Agent), suspend the obligation of such Lender thereafter to make or Continue Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar Loans, until the Regulatory Change
(b) Without limiting the effect of the provisions of the first paragraph (a) of this SectionSection 5.01, in the event that, by reason of any Regulatory Change, any Bank Lender either (1i) 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 Bank which Lender that includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which Lender that includes loans based on the LIBOR Rate Eurodollar Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which that it may hold, then, if such Bank Lender so elects by notice to Borrower the Company (with a copy to the Administrative Agent), the obligation of such Bank Lender to make or continueContinue, or to convert Convert Base Advances Rate Loans into, LIBOR Advances, as the case may be, Eurodollar Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of Section 10.04 5.04 hereof shall be applicable). Determinations ) and allocations by such Bank the Company shall not be obligated to pay any Additional Costs for purposes which the Lender ceases to be liable or to incur.
(c) Without limiting the effect of the foregoing provisions of this Section of 5.01 (but without duplication), the effect of any Regulatory Change pursuant Company shall pay directly to this Section, each Lender from time to time on its costs or rate of return of maintaining the Advances or on request such amounts receivable by it as such Lender may determine reasonably and in respect of the Advances, and the amounts required good faith to be necessary to compensate such Bank under this SectionLender (or, shall be conclusive absent manifest error. Howeverwithout duplication, the bank holding company of which such Lender is a subsidiary) for any costs that it determines reasonably and in good faith are attributable to the extent Additional Costs relate maintenance by such Lender (or any Applicable Lending Office or such bank holding company), pursuant to a Bank's loans in general any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not specifically failure to a Loan hereundercomply therewith would be unlawful) of any court or governmental or monetary authority
(i) following any Regulatory Change, such Bank shall use reasonable averaging or
(ii) implementing any risk-based capital guideline or other requirement (whether or not having the force of law and attribution methods. In additionwhether 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 Basel Accord (including, each Bank agrees thatwithout limitation, as promptly as practical after it becomes aware the Final Risk-Based Capital Guidelines of the occurrence Board 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) as a result thereof the additional money that would otherwise be required to be 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 require 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 Governors of the later Federal Reserve System (12 C.F.R. Part 208, Appendix A; 12 C.▇.▇. ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇) ▇▇d the Final Risk-Based Capital Guidelines of the Office of the Comptroller of the Currency (1) the date on which such Additional Costs are actually incurred by such Bank12 C.F.R. Part 3, or (2) the date on which such Bank knows, or should have known, that such Additional Costs have been incurred by such Bank.Appendix A)),
Appears in 1 contract
Additional Costs. Borrower (a) The Company shall pay directly to the Agent for the account of each 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), from time to time such amounts as such Bank may reasonably determine to be necessary to compensate it for any increased costs which such Bank determines are attributable to its making or maintaining main taining of any LIBOR Advance, of its Loans or its obligation to convert any Base Advance to a LIBOR Advance hereunder, make such Loans hereunder or any reduction in any amount receivable by such Bank from the Company hereunder or under the Notes in respect of any of such LIBOR Advances its Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting from any Regulatory Change which:
: (1i) changes the basis of taxation of any amounts payable to the Agent or such Bank by the Company under this Agreement or the Notes in respect of any of such LIBOR Advances Note (other than changes in the rate of income tax taxes imposed on the overall net income of such Bank or of its Applicable Lending Office by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);
; or (2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements requirements, or increases the rate of any such requirements, relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances of such Bank's Loans or any deposits referred to in the definition of "LIBOR RateLIBOR" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment of a Bankthe Commitments or the Notes; or
or (3iii) imposes any other condition affecting this Agreement or the Notes (or any of such extensions of credit or liabilities) or the Commitments. The relevant Bank will notify the Company (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 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), in no event shall any Bank requesting payment of any Additional Costs under this Section 5.01(a) be entitled to payment of such Additional Costs to the 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 dif ferent Applicable Lending Office for its Loans if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the 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 for compensation under this Section 5.01(a).
(b) Without limiting the effect of the provisions of the first paragraph of this SectionSection 5.01(a) hereof (but without duplication), in the event that, by reason of any Regulatory Change, any Bank either (1) 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 Bank which includes deposits by reference to which the LIBOR Rate is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate or (2) becomes subject to restrictions on the amount of such a any category of liabilities or assets which (relating to any Loan held by it may holdor its funding), then, if such Bank so elects by notice to Borrower the Company (with a copy to Administrative the Agent), the obligation of such Bank to make or continue, or to convert Base Advances into, LIBOR Advances, as the case may be, following provisions shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of Section 10.04 hereof shall be applicable). 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 Advances or on amounts receivable by it in respect of the Advances, and the amounts required to compensate such Bank under this Section, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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.apply:
Appears in 1 contract
Sources: Loan Agreement (Coca Cola Bottling Co Consolidated /De/)
Additional Costs. Borrower (a) The Company shall pay directly to each Bank within ten (10) days the Agent on behalf of a request for payment under this Section (which request shall be accompanied by a statement setting forth the basis for the request), any Lender from time to time such amounts as such Bank any Lender may determine to be necessary to compensate it for to
(i) shall subject any increased costs which such Bank determines are attributable to its making or maintaining any LIBOR Advance, Lender (or its obligation Lending Office) to convert any Base Advance to a LIBOR Advance hereundertax, duty or any reduction in any amount receivable by such Bank hereunder other charge in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting from any Regulatory Change which:
(1) its Notes or changes the basis of taxation of any amounts payable to such Bank Lender under this Agreement or the its Notes in respect of any of such LIBOR Advances Loans (other than excluding changes in the rate of tax on the overall net income tax imposed on of such Bank Lender or its Applicable of such Lending Office by the jurisdiction in which such Bank Lender has its principal office or such Applicable Lending Office);; or
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank Lender (including including, without limitation, any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Eurodollar Rate" in Section 1.01 hereof), or any Individual 364 Day Facility commitment of such Lender (including, without limitation, the Commitment of a Banksuch Lender hereunder); or
(3iii) imposes any other condition affecting this Agreement or the its Notes (or any of such extensions of credit or liabilities). ) or its Commitment.
(b) Without limiting the effect of the foregoing provisions of the first paragraph of this Section, in the event that, by reason of any Regulatory Change, any Bank either Section 5.01 (1) 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 Bank which includes deposits by reference to which the LIBOR Rate is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate or (2) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to Borrower (with a copy to Administrative Agentbut without duplication), the obligation Company shall pay to the Agent on behalf of any Lender from time to time on request such amounts as such Lender may determine to be necessary to compensate such 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 Lending Office or such bank holding company), pursuant to any law or regulation or any interpretation, directive or request (having the force of law and where the 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 (having the force of law and where 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, 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 Lender (or any Lending Office or such bank holding company) to make a level below that which such Lender (or continueany Lending Office or such bank holding company) could have achieved but for such law, regulation, interpretation, directive or to convert Base Advances into, 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 10.04 hereof shall be applicablerequest). Determinations and allocations by such Bank for 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 Regulations and Supervisory Practices in its paper entitled "International Convergence of the effect of any Regulatory Change pursuant to this Section, on its costs or rate of return of maintaining the Advances or on amounts receivable by it in respect of the Advances, Capital Measurement and the amounts required to compensate such Bank under this Section, 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 thatCapital Standards" dated July 1988, 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 Sectionamended, it will use commercially reasonable efforts to make, fund or maintain the affected Advance through another lending office of such Bank if (a) as a result thereof the additional money that would otherwise be required to be paid modified and supplemented and 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 require 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.effect
Appears in 1 contract
Sources: Credit Agreement (Starwood Hotel & Resorts Worldwide Inc)
Additional Costs. Borrower (a) The Borrowers shall pay directly to each Bank Lender from time to time within ten (10) days five Banking Days of a request for payment under this Section (which request shall be accompanied by a statement setting forth the basis for the request), demand therefor such amounts as such Bank Lender may reasonably determine to be necessary to compensate it for any increased costs which such Bank Lender determines are attributable to its making or maintaining any LIBOR Advance, Eurodollar Loans under this Agreement or its Note or its obligation to convert make any Base Advance to a LIBOR Advance such Loans hereunder, or any reduction in any amount receivable by such Bank Lender hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting from any Regulatory Change which:
: (1i) changes the basis of taxation of any amounts payable to such Bank Lender under this Agreement or the Notes its Note in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on the overall net income of such Bank Lender or of its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank Lender has its principal office or such Applicable Lending Office);
; or (2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank Lender; or (including any LIBOR Advances or any deposits referred to in the definition of "LIBOR Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition affecting this Agreement or the Notes 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 ss. 3.01(a) as promptly as practicable after it obtains knowledge thereof and determines to request such compensation. If any Lender requests compensation from the Borrowers under this ss. 3.01(a), or under ss. 3.01(c), the Borrowers may, by notice to such Lender with a copy to the Agent, suspend the obligation of such Lender to make Loans of the type with respect to which such compensation is requested (in which case the provisions of ss. 3.04 shall be applicable).
(b) Without limiting the effect of the foregoing provisions of the first paragraph of this Sectionss. 3.01, in the event that, by reason of any Regulatory Change, any Bank Lender either (1i) 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 Bank Lender which includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank Lender which includes loans based on the LIBOR Rate Eurodollar Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank Lender so elects by notice to Borrower (the Borrowers with a copy to Administrative the Agent), the obligation of such Bank Lender to make or continue, or to convert Base Advances into, LIBOR Advances, as the case may be, 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 10.04 hereof ss. 3.04 shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this ss.
3.01 (but without duplication), the Borrowers shall pay directly to each Lender from time to time within five Banking Days of request therefor such amounts as such Lender may determine to be necessary to compensate such 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 ss. 3.01(c) as promptly as practicable after it determines to request such compensation.
(d) Determinations and allocations by such Bank a Lender for purposes of this Section ss. 3.01 of the effect of any Regulatory Change pursuant to this Sectionsubsections (a) or (b), or of the effect of capital maintained pursuant to subsection (c), on its costs of making or rate of return of maintaining the Advances Loans or its obligation to make Loans, or on amounts receivable by by, or the rate of return to, it in respect of the AdvancesLoans or such obligation, and of the additional amounts required to compensate such Bank Lender under this Sectionss. 3.01, shall be conclusive absent manifest errorconclusive, provided that such determinations and allocations are made on a reasonable basis. However, Each Lender demanding payment from the Borrowers pursuant to this ss.
3.01 shall furnish 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 Borrowers at 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 time of such Bank if (a) as demand a result thereof statement showing the additional money that would otherwise be required to be paid in respect basis for and the method of calculation 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 require 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 Bankdemand.
Appears in 1 contract
Additional Costs. Borrower (a) The Company shall pay directly to each 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), Lender from time to time such amounts as such Bank Lender may reasonably and in good faith determine to be necessary to compensate it such Lender for any increased costs which that such Bank Lender reasonably and in good faith determines are attributable to its making or maintaining of any LIBOR Advance, Eurodollar Loans or its obligation to convert make any Base Advance to a LIBOR Advance Eurodollar Loans hereunder, or any reduction in any amount receivable by such Bank Lender hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting from any Regulatory Change whichthat:
(1i) changes the basis of taxation of any amounts payable to such Bank Lender under this Agreement or the Notes its Note in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on or measured by the overall net income of such Bank Lender or of its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank Lender has its principal office or such Applicable Lending Office);; or
(2ii) 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 Lender for any period as to which the Company is required to pay any amount under paragraph (e) below, the reserves against "Eurocurrency liabilities" under Regulation D therein referred to) relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank Lender (including including, without limitation, any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Eurodollar Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment commitment of a Banksuch Lender hereunder (including, without limitation, the Commitments of such Lender); or
(3iii) imposes any other condition affecting this Agreement or the Notes its Note (or any of such extensions of credit or liabilities) or its Commitments. If any Lender requests compensation from the Company under this Section 5.01(a). , the Company may, by notice to such Lender (with a copy to the Administrative Agent), suspend the obligation of such Lender thereafter to make or Continue Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar Loans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of Section 5.04 hereof shall be applicable), provided that such suspension shall not affect the right of such Lender to receive the compensation so requested to the extent such Lender certifies that such compensation is still payable notwithstanding such suspension.
(b) Without limiting the effect of the provisions of the first paragraph (a) of this SectionSection 5.01, in the event that, by reason of any Regulatory Change, any Bank Lender either (1i) 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 Bank which Lender that includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which Lender that includes loans based on the LIBOR Rate Eurodollar Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which that it may hold, then, if such Bank Lender so elects by notice to Borrower the Company (with a copy to the Administrative Agent), the obligation of such Bank Lender to make or continueContinue, or to convert Convert Base Advances Rate Loans into, LIBOR Advances, as the case may be, Eurodollar Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of Section 10.04 5.04 hereof shall be applicable). Determinations ) and allocations by such Bank the Company shall not be obligated to pay any Additional Costs for purposes which the Lender ceases to be liable or to incur.
(c) Without limiting the effect of the foregoing provisions of this Section of 5.01 (but without duplication), the effect of any Regulatory Change pursuant Company shall pay directly to this Section, each Lender from time to time on its costs or rate of return of maintaining the Advances or on request such amounts receivable by it as such Lender may determine reasonably and in respect of the Advances, and the amounts required good faith to be necessary to compensate such Bank under this SectionLender (or, shall be conclusive absent manifest error. Howeverwithout duplication, the bank holding company of which such Lender is a subsidiary) for any costs that it determines reasonably and in good faith are attributable to the extent Additional Costs relate maintenance by such Lender (or any Applicable Lending Office or such bank holding company), pursuant to a Bank's loans in general any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not specifically failure to a Loan hereundercomply therewith would be unlawful) of any court or governmental or monetary authority
(i) following any Regulatory Change, such Bank shall use reasonable averaging or
(ii) implementing any risk-based capital guideline or other requirement (whether or not having the force of law and attribution methods. In additionwhether 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 Basel Accord (including, each Bank agrees thatwithout limitation, as promptly as practical after it becomes aware the Final Risk-Based Capital Guidelines of the occurrence Board 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) as a result thereof the additional money that would otherwise be required to be 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 require 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 Governors of the later 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 (1) the date on which such Additional Costs are actually incurred by such Bank12 C.F.R. Part 3, or (2) the date on which such Bank knows, or should have known, that such Additional Costs have been incurred by such Bank.Appendix A)),
Appears in 1 contract
Additional Costs. (a) If Bank shall determine that the adoption or implementation of any applicable Law, rule, regulation, or treaty regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank, or comparable agency charged with the interpretation or administration thereof, or compliance by Bank (or its applicable lending office) with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank, or comparable agency, has or would have the effect of reducing the rate of return on capital of Bank or any person or entity controlling Bank (“Bank’s Parent”) as a consequence of its obligations hereunder to a level below that which Bank (or Bank’s Parent) could have achieved but for such adoption, change, or compliance (taking into consideration policies with respect to capital adequacy) by an amount deemed by Bank to be material, then from time to time, within five (5) days after demand by Bank, Borrower shall pay directly to each 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 additional amount or amounts as will compensate Bank for such Bank may determine reduction. Notwithstanding anything herein to be necessary to compensate it for any increased costs which such Bank determines are attributable to its making the contrary, (i) the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or maintaining any LIBOR Advancedirectives thereunder or issued in connection therewith, and (ii) all requests, rules, guidelines or its obligation to convert any Base Advance to a LIBOR Advance hereunder, or any reduction in any amount receivable by such 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 Costs"), resulting from any Regulatory Change which:
(1) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the Notes in respect of any of such LIBOR Advances (other than changes in the rate of income tax imposed on such Bank or its Applicable Lending Office directives concerning capital adequacy promulgated by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);
(2) imposes or modifies or deems applicable any reservefor International Settlements, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances or any deposits referred to in the definition of "LIBOR Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment of a Bank; or
(3) imposes any other condition affecting this Agreement or the Notes Basel Committee on Banking Supervision (or any of such extensions of credit successor or liabilities). Without limiting the effect of the provisions of the first paragraph of this Section, similar authority) (including pursuant to Basel III) shall in the event that, by reason of any Regulatory Change, any Bank either (1) 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 Bank which includes deposits by reference to which the LIBOR Rate is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate or (2) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to Borrower (with a copy to Administrative Agent), the obligation of such Bank to make or continue, or to convert Base Advances into, LIBOR Advances, as the each case may be, shall be suspended until such Regulatory Change ceases deemed to be a change in effect (in which case the provisions of Section 10.04 hereof shall be applicable). Determinations and allocations by such Bank law for purposes of this Section Agreement, regardless of the effect date enacted, adopted or issued. A statement of any Regulatory Change pursuant to this Section, on its costs or rate of return of maintaining the Advances or on amounts receivable by it in respect of the Advances, and the amounts required to compensate such Bank claiming compensation under this Section, Section 2.5 and setting forth the additional amount or amounts to be paid to it hereunder 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) as a result thereof the additional money that would otherwise be required to be paid in respect of such Advance could be reduced and .
(b) Borrower authorizes Bank, at its sole option, to (i) debit an Advance on or after the making, funding or maintaining of such Advance through such Closing Date (ii) debit any other lending office would not adversely affect such Advance or such Bank. Finally, if a Bank is to require 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 account with Bank, or (2iii) the date on which such Bank knowsmake demand upon Borrower, or should have known, that such Additional Costs have been for payment of all reasonable attorneys’ fees and expenses incurred by such Bank in connection with the negotiation and documentation of the Revolver Line by counsel retained by Bank, which attorney’s fees and expenses become due through the Closing Date and/or after the Closing Date.
Appears in 1 contract
Sources: Loan and Security Agreement (Siebert Financial Corp)
Additional Costs. (a) The Borrower shall pay directly to each Bank Lender from time to time within ten (10) days five Banking Days of a request for payment under this Section (which request shall be accompanied by a statement setting forth the basis for the request), demand therefor such amounts as such Bank Lender may reasonably determine to be necessary to compensate it for any increased costs which such Bank Lender determines are attributable to its making or maintaining any LIBOR Advance, Eurodollar Loans under this Agreement or its Note or its obligation to convert make any Base Advance to a LIBOR Advance such Loans hereunder, or any reduction in any amount receivable by such Bank Lender hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), ---------------- resulting from any Regulatory Change which:
: (1i) changes the basis of taxation of any amounts payable to such Bank Lender under this Agreement or the Notes its Note in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on the overall net income of such Bank Lender or of its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank Lender has its principal office or such Applicable Lending Office);
; or (2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank Lender; or (including any LIBOR Advances or any deposits referred to in the definition of "LIBOR Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition affecting this Agreement or the Notes 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) 3.01(a) as promptly as practicable after it obtains knowledge thereof and determines to request such compensation. If any Lender requests compensation from the Borrower under this (S) 3.01(a), or under (S) 3.01(c), the Borrower may, by notice to such Lender with a copy to the Agent, suspend the obligation of such Lender to make Loans of the type with respect to which such compensation is requested (in which case the provisions of (S) 3.04 shall be applicable).
(b) Without limiting the effect of the foregoing provisions of the first paragraph of this Section(S) 3.01, in the event that, by reason of any Regulatory Change, any Bank Lender either (1i) 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 Bank Lender which includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank Lender which includes loans based on the LIBOR Rate Eurodollar Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank Lender so elects by notice to the Borrower (with a copy to Administrative the Agent), the obligation of such Bank Lender to make or continue, or to convert Base Advances into, LIBOR Advances, as the case may be, 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 10.04 hereof (S) 3.04 shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this (S) 3.01 (but without duplication), the Borrower shall pay directly to each Lender from time to time within five Banking Days of request therefor such amounts as such Lender may determine to be necessary to compensate such 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 such Bank a Lender for purposes of this Section (S) 3.01 of the effect of any Regulatory Change pursuant to this Sectionsubsections (a) or (b), or of the effect of capital maintained pursuant to subsection (c), on its costs of making or rate of return of maintaining the Advances Loans or its obligation to make Loans, or on amounts receivable by by, or the rate of return to, it in respect of the AdvancesLoans or such obligation, and of the additional amounts required to compensate such Bank Lender under this Section(S) 3.01, shall be conclusive absent manifest errorconclusive, provided that such determinations and allocations are made on a reasonable basis. However, Each Lender demanding payment from the Borrower pursuant to this (S)
3.01 shall furnish 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 Borrower at 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 time of such Bank if (a) as demand a result thereof statement showing the additional money that would otherwise be required to be paid in respect basis for and the method of calculation 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 require 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 Bankdemand.
Appears in 1 contract
Additional Costs. Borrower (a) The Company shall pay directly to each 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), from time to time such amounts as such Bank may determine to be necessary to compensate it such Bank for any increased costs which that such Bank determines are attributable to its making or maintaining of any LIBOR Advance, Eurodollar Loans or its obligation to convert make any Base Advance to a LIBOR Advance Eurodollar Loans hereunder, or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR 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 whichthat:
(1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the its Notes in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on or measured by the overall net income of such Bank or of its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);; or
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than the Reserve Requirement utilized in the determination of the Eurodollar Rate for such Loan) relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including including, without limitation, any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Eurodollar Base Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment commitment of a Banksuch Bank (including, without limitation, either of the Commitments of such Bank hereunder); or
(3iii) imposes any other condition affecting this Agreement or the Notes its Note (or any of such extensions of credit or liabilities) or its Commitments. If any Bank requests compensation from the Company under this Section 5.01(a). , the Company may, by notice to such Bank (with a copy to the Agent), suspend the obligation of such Bank thereafter to make or Continue Eurodollar Loans, or to Convert Prime Rate Loans into Eurodollar Loans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of Section 5.04 hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Bank to receive the compensation so requested.
(b) Without limiting the effect of the provisions of the first paragraph (a) of this SectionSection 5.01, in the event that, by reason of any Regulatory Change, any Bank either (1i) 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 Bank which that includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which that includes loans based on the LIBOR Rate or (2) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to Borrower (with a copy to Administrative Agent), the obligation of such Bank to make or continue, or to convert Base Advances into, 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 10.04 hereof shall be applicable). 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 Advances or on amounts receivable by it in respect of the Advances, and the amounts required to compensate such Bank under this Section, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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.Eurodollar Loans or
Appears in 1 contract
Sources: Credit Agreement (Forest Oil Corp)
Additional Costs. Borrower (1) The Borrowers shall pay directly to each 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), Lender from time to time such amounts as such Bank Lender may reasonably determine to be necessary to compensate it for any increased costs incurred by such Lender which such Bank Lender determines are attributable to its making or maintaining of any LIBOR Advance, Eurocurrency Loans hereunder or its obligation to convert make any Base Advance to a LIBOR Advance of such Eurocurrency Loans hereunder, or any reduction in any amount receivable by such Bank Lender hereunder in respect of any of such LIBOR Advances Eurocurrency Loan 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 which:
(1) changes the basis of taxation of any amounts payable to such Bank Lender under this Agreement or the Notes Note held by such Lender in respect of any of such LIBOR Advances (other than changes in the rate of income tax imposed on such Bank or its Applicable Lending Office by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);Eurocurrency Loan; or
(2) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank Lender (including any LIBOR Advances Eurocurrency Loan or any deposits referred to in the definition of "LIBOR Eurodollar Rate" in Section 1.01 hereofor "Multicurrency Rate" below), or any Individual 364 Day Facility Commitment of a Bank; or
(3) imposes any other condition affecting this Agreement or the Notes any Note (or any of such extensions of credit or liabilities). Each Lender will notify the Borrowers and the Agent of any event occurring after the date of this Agreement which will entitle such Lender to compensation 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 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 4.1.
(2) Without limiting the effect of the foregoing provisions of the first paragraph of this Section, Section 4.1 in the event that, by reason of any Regulatory Change, any Bank Lender either (1i) 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 Bank Lender which includes deposits by reference to which the LIBOR Rate interest rate on Eurocurrency Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank Lender which includes loans based on the LIBOR Rate Eurocurrency Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank Lender so elects by notice to Borrower (with a copy to Administrative Agent)the Borrowers, the obligation of such Bank Lender to make or continue, or to convert Base Advances into, LIBOR Advances, as the case may be, Eurocurrency Loans hereunder shall be suspended until the date such Regulatory Change ceases to be in effect (in which case the provisions of Section 10.04 hereof shall be applicable). 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 Advances or on amounts receivable by it in respect of the Advances, and the amounts required to compensate such Bank under this Section, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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 Bankeffect.
Appears in 1 contract
Additional Costs. Borrower shall pay directly to each Bank within ten (10a) days of a request for payment under this Section (which request shall be accompanied by a statement setting forth If the basis for the request), such amounts as such Bank may determine to be necessary to compensate it for any increased costs which such Bank determines are attributable to its making or maintaining any LIBOR Advance, or its obligation to convert any Base Advance to a LIBOR Advance hereunderadoption 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 Bank hereunder in respect Lender with any request or directive (whether or not having the force of any of such LIBOR Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting law) from any Regulatory Change whichcentral bank or other Governmental Authority or the NAIC made subsequent to the date hereof:
(1i) changes shall subject any Lender to any tax of any kind whatsoever with respect to this Agreement, any Note, any Letter of Credit or any Lender's participation therein, any Letter of Credit Document or any LIBOR Loan made by it or change the basis of taxation of any amounts payable payments to such Bank under this Agreement or the Notes Lender in respect thereof (except, in each case, for taxes excluded from the definition of any of such LIBOR Advances (other than Covered Taxes covered by Section 5.06 and changes in the rate of tax on the overall net income tax imposed on of such Bank or its Applicable Lending Office by the jurisdiction in which such Bank has its principal office or such Applicable Lending OfficeLender);
(2ii) imposes shall impose, modify or modifies or deems hold applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio compulsory loan or similar requirements relating to any requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit of the type specified herein or other assets ofby, or any deposits with or other liabilities ofacquisition of funds by, any office of such Bank (including any LIBOR Advances or any deposits referred to Lender which is not otherwise included in the definition determination of "the LIBOR Rate" in Section 1.01 hereof)Rate hereunder, or including, without limitation, the imposition of any Individual 364 Day Facility Commitment of a Bankreserves with respect to the Eurocurrency Liabilities under Regulation D; or
(3iii) imposes shall impose on such Lender any other condition affecting condition; and the result of any of the foregoing is to increase the cost to such Lender, by an amount which such 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, to the extent permitted by law, Borrower shall pay within 15 days such Lender, upon its demand, any additional amounts necessary to compensate such Lender for such increased cost or reduced amount receivable. If any 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. 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, through Administrative Agent, to Borrower shall be conclusive in the absence of clearly demonstrable error. This covenant shall survive the termination of this Agreement or and the payment of the Notes all other amounts payable hereunder.
(b) In the event that any Lender shall have in good faith determined that the adoption of any law, rule, regulation or guideline regarding capital adequacy (or any change therein or in the interpretation or application thereof) or compliance by any Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of such extensions law) from any central bank or Governmental Authority, including, without limitation, the issuance of credit any final rule, regulation or liabilities). Without limiting guideline, does or shall have the effect of reducing the provisions rate of the first paragraph return on such Lender's or such corporation's capital as a consequence of this Sectionits obligations hereunder or under any Letter of Credit to a level below that which such Lender or such corporation could have achieved but for such adoption, in the event thatchange or compliance (taking into consideration such Lender's or such corporation's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, then from time to time, after submission by reason of any Regulatory Change, any Bank either (1) 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 Bank which includes deposits by reference to which the LIBOR Rate is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate or (2) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice Lender to Borrower (with a copy to Administrative Agent)) of a written request therefor, to the obligation extent permitted by law, Borrower shall within 15 days pay to such Lender such additional amount or amounts as will compensate such Lender for such reduction.
(c) Each Lender (and Issuing Lender) shall notify Borrower of any event that will entitle such Bank to make Lender (or continue, or to convert Base Advances into, LIBOR AdvancesIssuing Lender, as the case may be, shall be suspended until such Regulatory Change ceases ) to be in effect compensation under paragraph (in which case the provisions of Section 10.04 hereof shall be applicable). Determinations and allocations by such Bank for purposes a) or (b) of this Section 5.01 as promptly as practicable, but in any event within 90 days after such Lender (or Issuing Lender, as the case may be) obtains actual knowledge thereof; provided, however, ----------------- that (i) if any Lender (or Issuing Lender, as the case may be) fails to give such notice within 90 days after it obtains actual knowledge of such an event, such Lender (or Issuing Lender, as the effect of any Regulatory Change case may be) shall, with respect to compensation payable pursuant to this Section, on its costs or rate of return of maintaining the Advances or on amounts receivable by it Section 5.01 in respect of the Advancesany costs resulting from such event, and the amounts required only be entitled to compensate such Bank payment under this Section, shall be conclusive absent manifest error. However, Section 5.01 for costs incurred from and after the date 90 days prior to the extent Additional Costs relate to date that such Lender (or Issuing Lender, as the case may be) does give such notice and (ii) each Lender (or Issuing Lender, as the case may be), will designate a Bank's loans in general and not specifically to a Loan hereunderdifferent Applicable Lending Office for the Loans of such Lender (or the Letters of Credit, as the case may be) affected by such event if such designation will avoid the need for, or reduce the amount of, such Bank shall use reasonable averaging compensation and attribution methods. In additionwill not, each Bank agrees thatin the sole opinion of such Lender (or Issuing Lender, as promptly the case may be), be disadvantageous to such Lender (or Issuing Lender, as practical after it becomes aware the case may be). Each Lender (or Issuing Lender, as the case may be) will furnish to Borrower at the time of the occurrence of an event or the existence of a condition that would entitle it to exercise its rights request for compensation 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 paragraph (a) as a result thereof the additional money that would otherwise be required to be paid in respect of such Advance could be reduced and or (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 require Borrower to pay Additional Costs under this Section then such Bank must make 5.01 a demand on Borrower to pay such Additional Costs within ninety (90) days certificate setting forth the basis, amount and reasonable detail of the later computation of (1) the date on which such Additional Costs are actually incurred each request by such Bank, Lender for compensation under paragraph (a) or (2b) the date on of this Section 5.01, which such Bank knowscertificate shall, or should have knownexcept for demonstrable error, that such Additional Costs have been incurred by such Bank.be final, conclusive and binding for all purposes
Appears in 1 contract
Sources: Credit Agreement (Krasovec Frank P)
Additional Costs. (a) Subject to the limitations set forth in paragraph (c) below, the Borrower shall pay directly to each 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), Loan Participant from time to time such amounts as such Bank Loan Participant may determine to be necessary to compensate it such Loan Participant on an After-Tax Basis for any increased costs which that such Bank Loan Participant determines are attributable to its making or maintaining of any LIBOR Advance, Loans or its obligation to convert make any Base Advance to a LIBOR Advance Loans hereunder, or any reduction in any amount receivable by such Bank Loan Participant hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable (including any covered by clause (b) below) being herein called "“Additional Costs"”), resulting from any Regulatory Change whichthat:
(1i) changes the basis of taxation of any amounts payable to such Bank Loan Participant under this Agreement or the its Notes in respect of any of such LIBOR Advances Loans (other than changes (and excluded from Borrower’s responsibility) (A) a change in the rate taxation of the gross or net income tax imposed on of such Bank or its Applicable Lending Office by Loan Participant, (B) a change in taxation that results in Indemnified Taxes and (C) a change in taxation that results in Taxes described in clauses (b) through (e) of the jurisdiction in which such Bank has its principal office or such Applicable Lending Officedefinition of Excluded Taxes);; or
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances or any deposits referred to in the definition of "LIBOR Rate" in Section 1.01 hereof)Loan Participant, or any Individual 364 Day Facility Commitment commitment of a Banksuch Loan Participant (including, without limitation, the Credit Commitments of such Loan Participant hereunder); or
(3iii) imposes any other condition affecting this Agreement or the its Notes (or any of such extensions of credit or liabilities). ) or its Credit Commitments.
(b) Without limiting the effect of the foregoing provisions of the first paragraph of this Section, in the event that, by reason of any Regulatory Change, any Bank either (1) 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 Bank which includes deposits by reference to which the LIBOR Rate is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate or (2) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to Borrower (with a copy to Administrative Agent), the obligation of such Bank to make or continue, or to convert Base Advances into, 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 10.04 hereof shall be applicable). Determinations and allocations by such Bank for purposes of this Section of 5.01 (but without duplication) and subject to the effect of any Regulatory Change pursuant limitations in paragraph (c) below, the Borrower shall pay directly to this Section, each Loan Participant from time to time on its costs or rate of return of maintaining the Advances or on request such amounts receivable by it in respect of the Advances, and the amounts required as such Loan Participant may determine to be necessary to compensate such Bank under this SectionLoan Participant (or, shall be conclusive absent manifest error. Howeverwithout duplication, the bank holding company of which such Loan Participant is a subsidiary) for any increase in its costs that it determines are attributable to the extent Additional Costs relate to a Bank's loans in general and not specifically to a maintenance by such 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 Participant (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) as a result thereof the additional money that would otherwise be required to be 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 any Applicable Lending Office or such Bank. Finallybank holding company), if a Bank is to require 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.pursuant to
Appears in 1 contract
Additional Costs. Borrower (a) The Company shall pay directly to each 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), from time to time such amounts as such Bank may determine to be necessary to compensate it such Bank for any increased costs which that such Bank determines are attributable to its making or maintaining of any LIBOR Advance, Eurodollar Loans or Fixed Rate Loans or its obligation to convert make any Base Advance to a LIBOR Advance Eurodollar Loans or Fixed Rate Loans hereunder, or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting from any Regulatory Change whichthat:
(1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the its Notes in respect of any of such LIBOR Advances (other than changes in the rate of income tax taxes imposed on or measured by the overall net income of such Bank or of its Applicable Lending Office by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);; or
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than the Reserve Requirement utilized in the determination of the Eurodollar Rate for such Loan) relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including including, without limitation, any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Eurodollar Base Rate" in Section 1.01 hereof), or any Individual 364 Day Facility commitment of such Bank hereunder (including, without limitation, the Commitment of a such Bank); or
(3iii) imposes any other condition affecting this Agreement or its Notes or its Commitment. If any Bank requests compensation from the Notes Company under this Section 5.01(a), the Company may, by notice to such Bank (or any with a copy to the Agent), suspend the obligation of such extensions Bank thereafter to make or Continue Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar Loans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of credit or liabilitiesSection 5.04 hereof shall be applicable). , provided that such suspension shall not affect the right of such Bank to receive the compensation so requested.
(b) Without limiting the effect of the provisions of the first paragraph (a) of this SectionSection 5.01, in the event that, by reason of any Regulatory Change, any Bank either (1i) 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 Bank which that includes deposits by reference to which the LIBOR interest rate on Eurodollar Loans or Fixed Rate Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which that includes loans based on the LIBOR Eurodollar Loans or Fixed Rate Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which that it may hold, then, if such Bank so elects by notice to Borrower the Company (with a copy to the Administrative Agent), the obligation of such Bank to make Eurodollar Loans or continue, or to convert Base Advances into, LIBOR Advances, Fixed Rate Loans as the case may be, 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 10.04 hereof 5.04).
(c) Without limiting the effect of the foregoing provisions of this Section 5.01 (but without duplication), the Company shall pay directly to each Bank from time to time on request such amounts as such Bank may determine to be applicable). Determinations and allocations necessary to compensate such 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. Pan 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 the effect of any Regulatory Change pursuant to this Section, on its costs or rate of return of maintaining the Advances or on amounts receivable by it in respect of the Advances, Capital Measurement and the amounts required to compensate such Bank under this Section, 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 thatCapital Standards" dated July 1988, as promptly as practical after it becomes aware of the occurrence of an event amended, modified and supplemented and in effect from time to time 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) as a result thereof the additional money that would otherwise be required to be 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 require 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 Bankany replacement thereof.
Appears in 1 contract
Sources: Credit Agreement (Enhance Financial Services Group Inc)
Additional Costs. Borrower 4.8.1. The Company shall pay directly to each 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), Lender from time to time such amounts as such Bank Lender may reasonably determine to be necessary to compensate it such Lender for any increased costs which that such Bank Lender determines are attributable to its making or maintaining of any LIBOR Advance, Eurodollar Loans or its obligation to convert make any Base Advance to a LIBOR Advance Eurodollar Loans hereunder, or any reduction in any amount receivable by such Bank Lender hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), solely to the extent resulting from any Regulatory Change whichthat:
4.8.1.1. shall subject any Lender (1or its Applicable Lending Office for any of such Loans) to any tax, duty or other charge in respect of such Loans or its Notes or changes the basis of taxation of any amounts payable to such Bank Lender under this Agreement or the its Notes in respect of any of such LIBOR Advances Loans (other than excluding changes in the rate of tax on the overall net income tax imposed on of such Bank Lender or its of such Applicable Lending Office by the jurisdiction in which such Bank Lender has its principal office or office, such Applicable Lending OfficeOffice or is otherwise doing business);; provided, however, that the Company shall be entitled to deduct and withhold taxes on interest payments to any Lender hereunder, and shall not be required to pay any Additional Costs to any Lender in respect thereof, to the extent such Additional Costs arise from such Lender's failure or inability to comply with the requirements of Section 5.08 hereof; or
(2) 4.8.1.2. imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than the Reserve Requirement utilized in the determination of the Eurodollar Rate for such Loan) relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank Lender (including including, without limitation, any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Eurodollar Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment commitment of a Banksuch Lender (including, without limitation, the Commitments of such Lender hereunder); or
(3) 4.8.1.3. imposes any other condition affecting this Agreement or the its Notes (or any of such extensions of credit or liabilities) or its Commitments. If any Lender requests compensation from the Company under this Section 5.01(a), the Company may, by notice to such Lender (with a copy to the Agent), suspend the obligation of such Lender thereafter to make or Continue Loans of the Type with respect to which such compensation is requested, or to Convert Loans of any other Type into Loans of such Type, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of Section 5.04 hereof shall be applicable), provided that such suspension shall not affect the right of such Lender to receive the compensation so requested.
4.8.2. Without limiting the effect of the provisions of the first paragraph (a) of this SectionSection 5.01, in the event that, by reason of any Regulatory Change, any Bank Lender either (1i) 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 Bank which Lender that includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Loans is 29 determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which Lender that includes loans based on the LIBOR Rate Eurodollar Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which that it may hold, then, if such Bank Lender so elects by notice to Borrower the Company (with a copy to Administrative the Agent), the obligation of such Bank Lender to make or continueContinue, or to convert Base Advances Convert Loans of any other Type into, LIBOR Advances, as the case may be, Loans of such Type hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of Section 10.04 5.04 hereof shall be applicable).
4.8.2.1. Determinations and allocations Without limiting the effect of the foregoing provisions of this Section 5.01 (but without duplication), the Company shall pay directly to each Lender from time to time on request such amounts as such Lender may determine to be reasonably necessary to compensate such 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 Bank Lender (or its 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 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 the effect of any Regulatory Change pursuant to this Section, on its costs or rate of return of maintaining the Advances or on amounts receivable by it in respect of the Advances, Capital Measurement and the amounts required to compensate such Bank under this Section, 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 thatCapital Standards" dated July 1988, as promptly as practical after it becomes aware of the occurrence of an event amended, modified and supplemented and in effect from time to time 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) as a result thereof the additional money that would otherwise be required to be 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 require 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 Bankany replacement thereof.
Appears in 1 contract
Sources: Credit Agreement (Clientlogic Corp)
Additional Costs. Borrower (a) The Company shall pay directly to each 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), from time to time such amounts as such Bank may determine to be necessary to compensate it such Bank for any increased costs which that such Bank determines are attributable to its making or maintaining of any LIBOR Advance, Eurodollar Loans or its obligation to convert make any Base Advance to a LIBOR Advance Eurodollar Loans hereunder, or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR 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 whichthat:
(1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the its Notes in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on or measured by the overall net income of such Bank or of its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);; or
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than the Reserve Requirement utilized in the determination of the Eurodollar Rate for such Loan) relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including including, without limitation, any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Eurodollar Base Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment commitment of a Banksuch Bank (including, without limitation, either of the Commitments of such Bank hereunder); or
(3iii) imposes any other condition affecting this Agreement or the Notes its Note (or any of such extensions of credit or liabilities) or its Commitments. If any Bank requests compensation from the Company under this Section 5.01(a). , the Company may, by notice to such Bank (with a copy to the Agent), suspend the obligation of such Bank thereafter to make or Continue Eurodollar Loans, or to Convert Prime Rate Loans into Eurodollar Loans, until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of Section 5.04 hereof shall be applicable), PROVIDED that such suspension shall not affect the right of such Bank to receive the compensation so requested.
(b) Without limiting the effect of the provisions of the first paragraph (a) of this SectionSection 5.01, in the event that, by reason of any Regulatory Change, any Bank either (1i) 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 Bank which that includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which that includes loans based on the LIBOR Rate Eurodollar Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which that it may hold, then, if such Bank so elects by notice to Borrower the Company (with a copy to Administrative the Agent), the obligation of such Bank to make or continueContinue, or to convert Convert Base Advances Rate Loans into, LIBOR Advances, as the case may be, Eurodollar Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of Section 10.04 5.04 hereof shall be applicable). Determinations and allocations .
(c) Without limiting the effect of the foregoing provisions of this Section 5.01 (but without duplication), the Company shall pay directly to each Bank from time to time on request such amounts as such Bank may determine to be necessary to compensate such 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 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). For purposes of this Section 5.01(c) and Section 5.06 hereof, "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 the effect of any Regulatory Change pursuant to this Section, on its costs or rate of return of maintaining the Advances or on amounts receivable by it in respect of the Advances, Capital Measurement and the amounts required to compensate such Bank under this Section, 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 thatCapital Standards" dated July 1988, as promptly as practical after it becomes aware of the occurrence of an event amended, modified and supplemented and in effect from time to time 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) as a result thereof the additional money that would otherwise be required to be 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 require 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 Bankany replacement thereof.
Appears in 1 contract
Sources: Credit Agreement (Forest Oil Corp)
Additional Costs. (a) Within thirty (30) days of any demand therefor, the Borrower shall pay directly to each 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), from time to time on demand such amounts as such Bank may reasonably determine to be necessary to compensate it for any increased costs which such Bank determines are attributable to its making or maintaining any LIBOR Advance, Eurocurrency Loans under this Agreement or its Note or its obligation to convert make any Base Advance to a LIBOR Advance such Loans hereunder, or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "“Additional Costs"”), resulting from any Regulatory Change Change, or any Reserve Requirement for any such Loans which:
: (1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the Notes its Note in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on the overall net income of such Bank or its Applicable Lending Office by the jurisdiction in which such Bank has its principal office office); or such Applicable Lending Office);
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances of such Loans or any deposits referred to in the definition of "“LIBOR Rate" ” in Section 1.01 hereof1.01), ; or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition affecting this Agreement or the Notes its Note (or any of such extensions of credit or liabilities). Each Bank will notify the Borrower of any event occurring after the Original Effective Date 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 the date that is one hundred twenty (120) days prior to the date of demand by such Bank, whichever is later. If any Bank requests compensation from the Borrower under this Section 3.01(a), or under Section 3.01(c), the Borrower may, by notice to such Bank (with a copy to the Agent), suspend the obligation of such Bank to maintain Loans of the type with respect to which such compensation is requested (in which case the provisions of Section 3.04 shall be applicable).
(b) Without limiting the effect of the foregoing provisions of the first paragraph of this SectionSection 3.01, in the event that, by reason of any Regulatory Change, any Bank either either: (1i) 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 Bank which includes deposits by reference to which the LIBOR Rate interest rate on Eurocurrency Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate Eurocurrency Loans, or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to the Borrower (with a copy to Administrative the Agent), the obligation of such Bank to make or continue, or to convert Base Advances into, LIBOR Advances, as the case may be, 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 10.04 hereof 3.04 shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this Section 3.01 (but without duplication), the Borrower shall pay directly to each Bank from time to time on request such amounts as such Bank may reasonably determine to be necessary to compensate such 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 Original Effective Date 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 such a Bank for purposes of this Section 3.01 of the effect of any Regulatory Change pursuant to this Sectionsubsections (a) or (b), or of the effect of capital maintained pursuant to subsection (c), on its costs of making or rate of return of maintaining the Advances Loans or its obligation to make Loans, or on amounts receivable by by, or the rate of return to, it in respect of the AdvancesLoans or such obligation, and of the additional amounts required to compensate such Bank under this SectionSection 3.01, shall be conclusive absent manifest error. Howeverconclusive, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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, provided that such Additional Costs have been incurred by such Bankdeterminations and allocations are made on a reasonable basis.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Hardinge Inc)
Additional Costs. Borrower (a) The Company shall pay directly to each Bank within ten from time to time on request pursuant to paragraph (10d) days of a request for payment under this Section (which request shall be accompanied by a statement setting forth the basis for the request), ss.
3.01 such amounts as such Bank may determine to be necessary to compensate it for any increased costs which such Bank determines are attributable to its making or maintaining of any LIBOR Advance, Fixed Rate Loans or its obligation to convert make any Base Advance to a LIBOR Advance Fixed Rate Loans hereunder, or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting from any Regulatory Change which:
(1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the its Notes in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on or measured by the overall net income of such Bank or of its Applicable Lending Office for any of such Loans by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);; or
(2ii) 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 Bank for any period as to which the Company is required to pay any amount under paragraph (e) below, the reserves against "Eurocurrency liabilities" under Regulation D therein referred to) relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances of such Loans or any deposits referred to in the definition of "LIBOR Fixed Base Rate" in Section 1.01 Schedule 1 hereof), or any Individual 364 Day Facility commitment of such Bank (including the Commitment of a Banksuch Bank hereunder); or
(3iii) imposes any other condition affecting this Agreement or the its Notes (or any of such extensions of credit or liabilities) or its Commitment. If any Bank requests compensation from the Company under this ss.3.01(a). , the Company may, by notice to such Bank (with a copy to Chase), suspend the obligation of such Bank to make additional Loans of the type with respect to 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 (B) such Bank gives notice to the Company that it will no longer require the Company to pay Additional Costs arising from such Regulatory Change.
(b) Without limiting the effect of the provisions of the first paragraph (a) of this Sectionss.3.01, in the event that, by reason of any Regulatory Change, any Bank either (1i) 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 Bank which includes deposits by reference to which the LIBOR Rate interest rate on Eurodollar Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate Eurodollar Loans or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to Borrower the Company (with a copy to Administrative AgentChase), the obligation of such Bank to make or continue, or to convert Base Advances into, LIBOR Advances, as the case may be, 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 10.04 ss.3.04 hereof shall be applicable). Determinations and allocations by such Bank for purposes of this Section of .
(c) Without limiting the effect of any Regulatory Change the foregoing provisions of this ss.3.01 (but without duplication), the Company shall pay directly to each Bank from time to time on request pursuant to paragraph (d) of this Section, on its costs or rate of return of maintaining the Advances or on ss.
3.01 such amounts receivable by it in respect of the Advances, and the amounts required as such Bank may determine to be necessary to compensate such Bank under this Section, shall be conclusive absent manifest error. However, for any costs which it determines are attributable to the extent Additional Costs relate to a Bank's loans in general and not specifically to a Loan hereunder, maintenance by such Bank shall use reasonable averaging (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 attribution methods. In additionwhether 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, each Bank agrees thatwithout limitation, as promptly as practical after it becomes aware the Final Risk Based Capital Guidelines of the occurrence 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 event amount equal to any reduction of the rate of return on assets 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 equity of such Bank if (aor any Applicable Lending Office) as to a result thereof the additional money level below that would otherwise be required to be 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 require 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 any Applicable Lending Office) could have achieved but for such law, regulation, interpretation, directive or should have knownrequest). For purposes of this ss.3.01(c), that such Additional Costs have been incurred "Basle Accord" shall mean the proposals for risk-based capital framework described by such Bankthe 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. Borrower shall promptly pay directly to each Bank within ten (10) days Administrative Agent for the account of a request for payment under this Section (which request shall be accompanied by a statement setting forth the basis for the request), Lender from time to time such amounts as such Bank Lender may reasonably and in good faith determine to be necessary to compensate it reimburse such Lender for any increased costs which incurred by such Bank Lender that 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 LIBOR Advance, Rate Loans or its obligation to convert make any Base Advance to a LIBOR Advance Rate Loans hereunder, or any reduction in any amount receivable by such Bank hereunder Lender under this Agreement or any of the other Loan Documents in respect of any of such LIBOR 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"”), resulting from any Regulatory Change which:
that: (1i) materially changes the basis of taxation of any amounts payable to such Bank Lender under this Agreement or any of the Notes other Loan Documents in respect of any of such LIBOR Advances Loans or its Commitment (other than changes in taxes which are excluded from the rate definition of income tax imposed on such Bank Taxes pursuant to the first sentence of Section 3.8(a)); or its Applicable Lending Office by the jurisdiction in which such Bank has its principal office or such Applicable Lending Office);
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements (other than Regulation D of the Board of Governors of the Federal Reserve System or other reserve requirement to the extent utilized in the determination of the Adjusted LIBOR Rate for such Loan) relating to to-any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances or any deposits referred to in the definition of "LIBOR Rate" in Section 1.01 hereof)Lender, or any Individual 364 Day Facility Commitment of a Bank; or
(3) imposes any other condition affecting this Agreement or the Notes (or any commitment of such extensions Lender (including, without limitation, the Commitments of credit such Lender hereunder); or liabilities). Without limiting (iii) has or would have the effect of reducing the provisions rate of the first paragraph of this Section, in the event that, by reason of any Regulatory Change, any Bank either (1) 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 Bank Lender to a level below that which includes deposits by reference to which the LIBOR Rate is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate or (2) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to Borrower (with a copy to Administrative Agent), the obligation of such Bank to make or continue, or to convert Base Advances into, LIBOR Advances, as the case may be, 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 10.04 hereof shall be applicablecapital adequacy). 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 Advances or on amounts receivable by it in respect of the Advances, and the amounts required to compensate such Bank under this Section, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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: Construction Loan and Security Agreement (Bluerock Residential Growth REIT, Inc.)
Additional Costs. Borrower (a) The Originator shall pay directly to each Bank within ten (10) days the Buyer, from time to time on demand of a request for payment under this Section (which request shall be accompanied by a statement setting forth the basis for the request)Buyer, such amounts as such Bank the Buyer may reasonably determine to be necessary to compensate it for any increased increase in costs which such Bank the Buyer determines are attributable to its making acquiring and funding the Receivables under this Agreement or maintaining any LIBOR Advance, or its obligation to convert any Base Advance to a LIBOR Advance hereunderthe Receivables Purchase Agreement, or any reduction in any amount receivable by such Bank hereunder the Buyer in respect of any of such LIBOR Advances acquisition Page 68 or such obligation funding (such increases in costs costs, payments and reductions in amounts receivable being herein called "Additional Costs"), ) resulting from any Regulatory Change which:
which (1i) changes the method or basis of taxation of any amounts payable to such Bank the Buyer under this Agreement or the Notes in respect of any of such LIBOR Advances (other than changes in the rate of income tax imposed on such Bank or its Applicable Lending Office payable by the jurisdiction Buyer in which such Bank has its principal office or such Applicable Lending Office);
(2) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit connection with the financing of the type specified herein or other assets ofpurchase of the Receivables, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances or any deposits referred to in the definition of "LIBOR Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment of a Bank; or
(3ii) imposes any other condition affecting this Agreement or the Notes (or any of such extensions of credit or liabilities). Without limiting The Buyer shall notify the effect of the provisions of the first paragraph of this Section, in the event that, by reason Originator of any Regulatory Change, any Bank either event that will entitle Buyer to compensation pursuant to this Section 7.3(a) no later than fifteen (115) 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 Bank which includes deposits by reference to which the LIBOR Rate is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate or Business Days after it obtains knowledge thereof.
(2b) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to Borrower (with a copy to Administrative Agent), the obligation of such Bank to make or continue, or to convert Base Advances into, 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 10.04 hereof shall be applicable). Determinations and allocations by such Bank the Buyer for purposes of this Section 7.3 shall be conclusive, provided that such determinations and allocations are made in good faith and on a reasonable basis, reasonable evidence (including an explanation of the effect applicable Regulatory Change and an accounting for any amounts demanded) of which shall be provided to the Originator upon request.
(c) The Buyer agrees to promptly notify the Originator if the Buyer receives notice of any Regulatory Change potential tax liability for which the Originator may be liable pursuant to this Section, on its Sections 7.2 or 7.3 hereof. The Buyer further agrees that the Originator shall bear no cost (including costs or rate of return of maintaining relating to penalties and interest) relating to the Advances or on amounts receivable by it in respect failure of the Advances, and the amounts required Buyer to compensate such Bank under this Section, shall be conclusive absent manifest error. However, to the extent Additional Costs relate to file in 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) as a result thereof the additional money that would otherwise be timely manner any tax returns required to be paid filed by the Buyer in respect of such Advance could be reduced accordance with applicable statutes 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 require 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 Bankregulations.
Appears in 1 contract
Sources: Purchase Agreement (Cone Mills Corp)
Additional Costs. Borrower shall pay directly to each Bank within ten (10a) days of a request for payment under this Section (which request shall be accompanied by a statement setting forth If the basis for the request), such amounts as such Bank may determine to be necessary to compensate it for any increased costs which such Bank determines are attributable to its making or maintaining any LIBOR Advance, or its obligation to convert any Base Advance to a LIBOR Advance hereunderadoption 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 Bank hereunder in respect Lender with any request or directive (whether or not having the force of any of such LIBOR Advances or such obligation (such increases in costs and reductions in amounts receivable being herein called "Additional Costs"), resulting law) from any Regulatory Change whichcentral bank or other Governmental Authority or the NAIC made subsequent to the date hereof:
(1i) changes shall subject any Lender to any tax of any kind whatsoever with respect to this Agreement, any Note or any LIBOR Loan made by it or change the basis of taxation of any amounts payable payments to such Bank under this Agreement or the Notes Lender in respect of thereof by any of such LIBOR Advances Governmental Authority (other than except for taxes covered by Section 5.06 and changes in the rate of tax on the overall net income tax imposed on of such Bank Lender or its Applicable Lending Office Office, or any affiliate thereof or franchise tax by the jurisdiction in which such Bank has its principal office or such Applicable Lending Officeany Governmental Authority);
(2ii) imposes shall impose, modify or modifies or deems hold applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio compulsory loan or similar requirements relating to any requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans -38- or other extensions of credit of the type specified herein or other assets ofby, or any deposits with or other liabilities ofacquisition of funds by, any office of such Bank (including any LIBOR Advances or any deposits referred to Lender which is not otherwise included in the definition determination of "the LIBOR Rate" in Section 1.01 hereof), or any Individual 364 Day Facility Commitment of a BankRate hereunder; or
(3iii) imposes shall impose on such Lender any other condition affecting this Agreement or (excluding taxes); and the Notes (or result of any of the foregoing is to increase the cost to such extensions Lender, by an amount which such Lender deems to be material, of credit making, converting into, continuing or liabilities)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 promptly pay such Lender, upon its demand, any additional amounts necessary to compensate such Lender for such increased cost or reduced amount receivable. If any 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. 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, through Administrative 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 amounts payable hereunder.
(b) In the event that any Lender shall have determined that the adoption of any law, rule, regulation or guideline regarding capital adequacy (or any change therein or in the interpretation or application thereof) or compliance by any Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) from any central bank or Governmental Authority or the NAIC, in each case, made subsequent to the date hereof including, without limitation, the issuance of any final rule, regulation or guideline, does or shall have the effect of reducing the provisions rate of the first paragraph return on such Lenders or such corporation's capital as a consequence of this Sectionits obligations hereunder to a level below that which such Lender or such corporation could have achieved but for such adoption, in the event thatchange or compliance (taking into consideration such Lender's or such corporation's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, then from time to time, after submission by reason of any Regulatory Change, any Bank either (1) 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 Bank which includes deposits by reference to which the LIBOR Rate is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate or (2) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice Lender to Borrower (with a copy to Administrative Agent)) of a written request therefor, the obligation of Borrower shall promptly pay to such Bank to make Lender such additional amount or continue, or to convert Base Advances into, LIBOR Advances, amounts as the case may be, shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of Section 10.04 hereof shall be applicable). 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 Advances or on amounts receivable by it in respect of the Advances, and the amounts required to will compensate such Bank under this Section, 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, Lender for 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) as a result thereof the additional money that would otherwise be required to be 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 require 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 Bankreduction.
Appears in 1 contract
Sources: Senior Subordinated Credit Agreement (Princess Beverly Coal Holding Co Inc)
Additional Costs. (a) Within thirty (30) days of any demand therefor, the Borrower shall pay directly to each 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), from time to time on demand such amounts as such Bank may reasonably determine to be necessary to compensate it for any increased costs which such Bank determines are attributable to its making or maintaining any LIBOR Advance, Eurocurrency Loans under this Agreement or its Note or its obligation to convert make any Base Advance to a LIBOR Advance such Loans hereunder, or any reduction in any amount receivable by such Bank hereunder in respect of any of such LIBOR Advances Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called "“Additional Costs"”), resulting from any Regulatory Change Change, or any Reserve Requirement for any such Loans which:
: (1i) changes the basis of taxation of any amounts payable to such Bank under this Agreement or the Notes its Note in respect of any of such LIBOR Advances Loans (other than changes in the rate of income tax taxes imposed on the overall net income of such Bank or its Applicable Lending Office by the jurisdiction in which such Bank has its principal office office); or such Applicable Lending Office);
(2ii) imposes or modifies or deems applicable any reserve, special deposit, deposit insurance or assessment, minimum capital, capital ratio or similar requirements relating to any extensions of credit of the type specified herein or other assets of, or any deposits with or other liabilities of, such Bank (including any LIBOR Advances of such Loans or any deposits referred to in the definition of "“LIBOR Rate" ” in Section 1.01 hereof1.01), ; or any Individual 364 Day Facility Commitment of a Bank; or
(3iii) imposes any other condition affecting this Agreement or the Notes 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 the date that is one hundred twenty (120) days prior to the date of demand by such Bank, whichever is later. If any Bank requests compensation from the Borrower under this Section 3.01(a), or under Section 3.01(c), the Borrower may, by notice to such Bank (with a copy to the Agent), suspend the obligation of such Bank to maintain Loans of the type with respect to which such compensation is requested (in which case the provisions of Section 3.04 shall be applicable).
(b) Without limiting the effect of the foregoing provisions of the first paragraph of this SectionSection 3.01, in the event that, by reason of any Regulatory Change, any Bank either either: (1i) 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 Bank which includes deposits by reference to which the LIBOR Rate interest rate on Eurocurrency Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Bank which includes loans based on the LIBOR Rate Eurocurrency Loans, or (2ii) becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold, then, if such Bank so elects by notice to the Borrower (with a copy to Administrative the Agent), the obligation of such Bank to make or continue, or to convert Base Advances into, LIBOR Advances, as the case may be, 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 10.04 hereof 3.04 shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this Section 3.01 (but without duplication), the Borrower shall pay directly to each Bank from time to time on request such amounts as such Bank may reasonably determine to be necessary to compensate such 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 such a Bank for purposes of this Section 3.01 of the effect of any Regulatory Change pursuant to this Sectionsubsections (a) or (b), or of the effect of capital maintained pursuant to subsection (c), on its costs of making or rate of return of maintaining the Advances Loans or its obligation to make Loans, or on amounts receivable by by, or the rate of return to, it in respect of the AdvancesLoans or such obligation, and of the additional amounts required to compensate such Bank under this SectionSection 3.01, shall be conclusive absent manifest error. Howeverconclusive, 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) as a result thereof the additional money that would otherwise be required to be 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 require 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, provided that such Additional Costs have been incurred by such Bankdeterminations and allocations are made on a reasonable basis.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Hardinge Inc)