Certain Rules Relating to the Payment of Additional Amounts. (a) Upon the request, and at the expense, of the Borrower, each Lender to which the Borrower is required to pay any additional amount pursuant to subsection 4.10 or 4.11, and any Participant in respect of whose participation such payment is required, shall reasonably afford the Borrower the opportunity to contest, and reasonably cooperate with the Borrower in contesting, the imposition of any Non-Excluded Tax giving rise to such payment; provided that (i) such Lender shall not be required to afford the Borrower the opportunity to so contest unless the Borrower shall have confirmed in writing to such Lender its obligation to pay such amounts pursuant to this Agreement and (ii) the Borrower shall reimburse such Lender for its reasonable attorneys’ and accountants’ fees and disbursements incurred in so cooperating with the Borrower in contesting the imposition of such Non-Excluded Tax; provided, however, that notwithstanding the foregoing no Lender shall be required to afford the Borrower the opportunity to contest, or cooperate with the Borrower in contesting, the imposition of any Non-Excluded Taxes, if such Lender in its sole discretion in good faith determines that to do so would have an adverse effect on it. (b) If a Lender changes its applicable lending office (other than pursuant to paragraph (c) below) and the effect of such change, as of the date of such change, would be to cause the Borrower to become obligated to pay any additional amount under subsection 4.10 or 4.11, the Borrower shall not be obligated to pay such additional amount. (c) If a condition or an event occurs which would, or would upon the passage of time or giving of notice, result in the payment of any additional amount to any Lender by the Borrower pursuant to subsection 4.10 or 4.11, such Lender shall promptly notify the Borrower and the Administrative Agent and shall take such steps as may reasonably be available to it to mitigate the effects of such condition or event (which shall include efforts to rebook the Loans held by such Lender at another lending office, or through another branch or an affiliate, of such Lender); provided that such Lender shall not be required to take any step that, in its reasonable judgment, would be materially disadvantageous to its business or operations or would require it to incur additional costs (unless the Borrower agrees to reimburse such Lender for the reasonable incremental out-of-pocket costs thereof). (d) If the Borrower shall become obligated to pay additional amounts pursuant to subsection 4.10 or 4.11 and any affected Lender shall not have promptly taken steps necessary to avoid the need for payments under subsection 4.10 or 4.11, the Borrower shall have the right, for so long as such obligation remains, (i) with the assistance of the Administrative Agent, to seek one or more substitute Lenders reasonably satisfactory to the Administrative Agent and the Borrower to purchase the affected Loan, in whole or in part, at an aggregate price no less than such Loan’s principal amount plus accrued interest, and assume the affected obligations under this Agreement, or (ii) upon at least four Business Days’ irrevocable notice to the Administrative Agent, to prepay the affected Loan, in whole or in part, subject to subsection 4.12, without premium or penalty. In the case of the substitution of a Lender, the Borrower, the Administrative Agent, the affected Lender, and any substitute Lender shall execute and deliver an appropriately completed Assignment and Acceptance pursuant to subsection 13.6(b) to effect the assignment of rights to, and the assumption of obligations by, the substitute Lender; provided that any fees required to be paid by subsection 13.6(b) in connection with such assignment shall be paid by the Borrower or the substitute Lender. In the case of a prepayment of an affected Loan, the amount specified in the notice shall be due and payable on the date specified therein, together with any accrued interest to such date on the amount prepaid. In the case of each of the substitution of a Lender and of the prepayment of an affected Loan, the Borrower shall first pay the affected Lender any additional amounts owing under subsections 4.10 and 4.11 (as well as any commitment fees and other amounts then due and owing to such Lender, including, without limitation, any amounts under subsection 4.13) prior to such substitution or prepayment. (e) For purposes of subsections 4.10 and 4.11, a change in treaty, law, rule or regulation shall not include the ratification or entry into force of (i) the protocol amending the income tax treaty between the Netherlands and the United States, signed October 15, 1995, and (ii) the income tax treaty between Italy and the United States, signed August 25, 1999. (f) If the Administrative Agent or any Lender receives a refund directly attributable to taxes for which the Borrower has made additional payments pursuant to subsection 4.10(a) or 4.11(a), the Administrative Agent or such Lender, as the case may be, shall promptly pay such refund (together with any interest with respect thereto received from the relevant taxing authority) to the Borrower, provided, however, that the Borrower agrees promptly to return such refund (together with any interest with respect thereto due to the relevant taxing authority) (free of all Non-Excluded Taxes) to the Administrative Agent or the applicable Lender, as the case may be, upon receipt of a notice that such refund is required to be repaid to the relevant taxing authority. (g) The obligations of a Lender or Participant under this subsection 4.13 shall survive the termination of this Agreement and the payment of the Loans and all amounts payable hereunder.
Appears in 1 contract
Certain Rules Relating to the Payment of Additional Amounts. (a) Upon the request, and at the expense, of the Borrower, each Lender to which the Borrower is required to pay any additional amount pursuant to subsection 4.10 or 4.11, and any Participant in respect of whose participation such payment is required, shall reasonably afford the Borrower the opportunity to contest, and reasonably cooperate with the Borrower in contesting, the imposition of any Non-Excluded Tax giving rise to such payment; provided that (i) such Lender shall not be required to afford the Borrower the opportunity to so contest unless the Borrower shall have confirmed in writing to such Lender its obligation to pay such amounts pursuant to this Agreement and (ii) the Borrower shall reimburse such Lender for its reasonable attorneys’ ' and accountants’ ' fees and disbursements incurred in so cooperating with the Borrower in contesting the imposition of such Non-Excluded Tax; provided, however, however that notwithstanding the foregoing no Lender shall be required to afford the Borrower the opportunity to contest, or cooperate with the Borrower in contesting, the imposition of any Non-Excluded Taxes, if such Lender in its sole discretion in good faith determines that to do so would have an adverse effect on it.
(b) If a Lender changes its applicable lending office (other than pursuant to paragraph (c) below) and the effect of such change, as of the date of such change, would be to cause the Borrower to become obligated to pay any additional amount under subsection 4.10 or 4.11, the Borrower shall not be obligated to pay such additional amount.
(c) If a condition or an event occurs which would, or would upon the passage of time or giving of notice, result in the payment of any additional amount to any Lender by the Borrower pursuant to subsection 4.10 or 4.11, such Lender shall promptly notify the Borrower and the Administrative Agent and shall take such steps as may reasonably be available to it to mitigate the effects of such condition or event (which shall include efforts to rebook the Loans held by such Lender at another lending office, or through another branch or an affiliate, of such Lender); provided that such Lender shall not be required to take any step that, in its reasonable judgment, would be materially disadvantageous to its business or operations or would require it to incur additional costs (unless the such Borrower agrees to reimburse such Lender for the reasonable incremental out-of-pocket costs thereof).
(d) If the Borrower shall become obligated to pay additional amounts pursuant to subsection 4.10 or 4.11 and any affected Lender shall not have promptly taken steps necessary to avoid the need for payments under subsection 4.10 or 4.11, the Borrower shall have the right, for so long as such obligation remains, (ix) with the assistance of the Administrative Agent, to seek one or more substitute Lenders reasonably satisfactory to the Administrative Agent and the Borrower to purchase the affected Loan, in whole or in part, at an aggregate price no less than such Loan’s 's principal amount plus accrued interest, and assume the affected obligations under this Agreement, or (iiy) upon at least four Business Days’ Days irrevocable notice to the Administrative Agent, to prepay the affected Loan, in whole or in part, subject to subsection 4.12, without premium or penalty. In the case of the substitution of a Lender, the Borrower, the Administrative Agent, the affected Lender, and any substitute Lender shall execute and deliver an appropriately completed Assignment and Acceptance pursuant to subsection 13.6(b11.6(c) to effect the assignment of rights to, and the assumption of obligations by, the substitute Lender; provided that any fees required to be paid by subsection 13.6(b11.6(e) in connection with such assignment shall be paid by the Borrower or the substitute Lender. In the case of a prepayment of an affected Loan, the amount specified in the notice shall be due and payable on the date specified therein, together with any accrued interest to such date on the amount prepaid. In the case of each of the substitution of a Lender and of the prepayment of an affected Loan, the Borrower shall first pay the affected Lender any additional amounts owing under subsections 4.10 4.10, 4.11 and 4.11 4.12 (as well as any commitment fees and other amounts then due and owing to such Lender, including, without limitation, any amounts under subsection 4.13) prior to such substitution or prepayment.
(e) For purposes of subsections 4.10 and 4.11, a change in treaty, law, rule or regulation shall not include the ratification or entry into force of (i) the protocol amending the income tax treaty between the Netherlands and the United States, signed October 15, 1995, and (ii) the income tax treaty between Italy and the United States, signed August 25, 1999.
(f) If the Administrative Agent or any Lender or any Participant receives a refund directly attributable to taxes for which the Borrower has made additional payments pursuant to subsection 4.10(a) or 4.11(a), the Administrative Agent or such Lender, as the case may be, shall promptly pay such refund (together with any interest with respect thereto received from the relevant taxing authority) to the Borrower, provided, however, that the Borrower agrees promptly to return such refund (together with any interest with respect thereto due to the relevant taxing authority) (free of all Non-Excluded Taxes) to the Administrative Agent or the applicable Lender, as the case may be, upon receipt of a notice that such refund is required to be repaid to the relevant taxing authority.
(gf) The obligations of a Lender or Participant under this subsection 4.13 shall survive the termination of this Agreement and the payment of the Loans and all amounts payable hereunder.
Appears in 1 contract
Certain Rules Relating to the Payment of Additional Amounts. (a) Upon the request, and at the expense, expense of the applicable Borrower, each Lender to which any of the Borrower Borrowers is required to pay any additional amount pursuant to subsection 4.10 or 4.11, and any Participant in respect of whose participation such payment is required, shall reasonably afford the such Borrower the opportunity to contest, and reasonably cooperate with the such Borrower in contesting, the imposition of any Non-Excluded Tax giving rise to such payment; provided that (i) such Lender shall not be required to afford the such Borrower the opportunity to so contest unless the such Borrower shall have confirmed in writing to such Lender its obligation to pay such amounts pursuant to this Agreement and (ii) the such Borrower shall reimburse such Lender for its reasonable attorneys’ ' and accountants’ ' fees and disbursements incurred in so cooperating with the such Borrower in contesting the imposition of such Non-Excluded Tax; provided, however, that notwithstanding the foregoing no Lender shall be required to afford the any Borrower the opportunity to contest, or cooperate with the such Borrower in contesting, the imposition of any Non-Excluded Taxes, if such Lender in its sole discretion in good faith determines that to do so would have an adverse effect on it.
(b) If a Lender changes its applicable lending office (other than (i) pursuant to paragraph (c) belowbelow or (ii) after an Event of Default under subsection 9(a) or (f) has occurred and is continuing) and the effect of such change, as of the date of such change, would be to cause any of the Borrower Borrowers to become obligated to pay any additional amount under subsection 4.10 or 4.11, the such Borrower shall not be obligated to pay such additional amount.
(c) If a condition or an event occurs which would, or would upon the passage of time or giving of notice, result in the payment of any additional amount to any Lender by any of the Borrower Borrowers pursuant to subsection 4.10 or 4.11, such Lender shall promptly notify the applicable Borrower and the U.S. Administrative Agent and shall take such steps as may reasonably be available to it to mitigate the effects of such condition or event (which shall include efforts to rebook the Loans held by such Lender at another lending office, or through another branch or an affiliate, of such Lender); provided that such Lender shall not be required to take any step that, in its reasonable judgment, would be materially disadvantageous to its business or operations or would require it to incur additional costs (unless the Parent Borrower agrees to reimburse such Lender for the reasonable incremental out-of-pocket costs thereof).
(d) If any of the Borrower Borrowers shall become obligated to pay additional amounts pursuant to subsection 4.10 or 4.11 and any affected Lender shall not have promptly taken steps necessary to avoid the need for payments under subsection 4.10 or 4.11, the applicable Borrower shall have the right, for so long as such obligation remains, (i) with the assistance of the U.S. Administrative Agent, to seek one or more substitute Lenders reasonably satisfactory to the U.S. Administrative Agent and the such Borrower to purchase the affected Loan, in whole or in part, at an aggregate price no less than such Loan’s 's (other than a Bankers' Acceptance Loan) principal amount plus accrued interest, and in the case of any Bankers' Acceptance Loan, to provide cash collateral in an amount equal to the face amount of each affected Bankers' Acceptance Loan pursuant to arrangements satisfactory to the affected Lender, and, in each case, assume the affected obligations under this Agreement, or (ii) so long as no Default or Event of Default then exists or will exist immediately after giving effect to the respective prepayment, upon at least four Business Days’ ' irrevocable notice to the U.S. Administrative Agent (and, if applicable, the Canadian Administrative Agent), to prepay the affected Loan (other than a Bankers' Acceptance Loan), in whole or in part, subject to subsection 4.12, without premium or penalty, except as otherwise provided in subsections 4.6(a) and 4.12 in the case of any Bankers' Acceptance Loan, to provide cash collateral in an amount equal to the face amount of each affected Bankers' Acceptance Loan pursuant to arrangements satisfactory to the affected Lender. In the case of the substitution of a Lender, the Parent Borrower (and any other applicable Borrower), the U.S. Administrative Agent, the affected Lender, and any substitute Lender shall execute and deliver an appropriately completed Assignment and Acceptance pursuant to subsection 13.6(b11.6(b) to effect the assignment of rights to, and the assumption of obligations by, the substitute Lender; provided that any fees required to be paid by subsection 13.6(b11.6(b) in connection with such assignment shall be paid by the such Borrower or the substitute Lender. In the case of a prepayment of an affected Loan, the amount specified in the notice shall be due and payable on the date specified therein, together with any accrued interest to such date on the amount prepaid. In the case of each of the substitution of a Lender and of the prepayment of an affected Loan, the applicable Borrower shall first pay the affected Lender any additional amounts owing under subsections 4.10 and 4.11 (as well as any commitment fees and other amounts then due and owing to such Lender, including, without limitation, including any amounts under this subsection 4.13) prior to such substitution or prepayment.
(e) For purposes of subsections 4.10 and 4.11, a change in treaty, law, rule or regulation shall not include the ratification or entry into force of (i) the protocol amending the income tax treaty between the Netherlands and the United States, signed October 15, 1995, and (ii) the income tax treaty between Italy and the United States, signed August 25, 1999.
(f) If the Administrative any Agent or any Lender receives a refund directly attributable to taxes for which any of the Borrower Borrowers has made additional payments pursuant to subsection 4.10(a) or 4.11(a), the Administrative such Agent or such Lender, as the case may be, shall promptly pay such refund (together with any interest with respect thereto received from the relevant taxing authority, but net of any reasonable cost incurred in connection therewith) to the such Borrower, ; provided, however, that the such Borrower agrees promptly to return such refund (together with any interest with respect thereto due to the relevant taxing authority) (free of all Non-Excluded Taxes) to the Administrative such Agent or the applicable Lender, as the case may be, upon receipt of a notice that such refund is required to be repaid to the relevant taxing authority.
(gf) The obligations of a any Agent, Lender or Participant under this subsection 4.13 shall survive the termination of this Agreement and the payment of the Loans and all amounts payable hereunder.
Appears in 1 contract
Sources: Credit Agreement (RSC Holdings Inc.)
Certain Rules Relating to the Payment of Additional Amounts. (a) Upon the request, and at the expense, expense of the Borrower, each Lender and Agent to which the Borrower is required to pay any additional amount pursuant to subsection Subsection 4.10 or 4.11, and any Participant in respect of whose participation such payment is required, shall reasonably afford the Borrower the opportunity to contest, and reasonably cooperate with the Borrower in contesting, the imposition of any Non-Excluded Tax giving rise to such payment; provided that (i) such Lender or Agent shall not be required to afford the Borrower the opportunity to so contest unless the Borrower shall have confirmed in writing to such Lender or Agent its obligation to pay such amounts pursuant to this Agreement and (ii) the Borrower shall reimburse such Lender or Agent for its reasonable attorneys’ and accountants’ fees and disbursements incurred in so cooperating with the Borrower in contesting the imposition of such Non-Excluded Tax; provided, however, that notwithstanding the foregoing no Lender or Agent shall be required to afford the Borrower the opportunity to contest, or cooperate with the Borrower in contesting, the imposition of any Non-Non- Excluded Taxes, if such Lender or Agent in its sole reasonable discretion in good faith determines that to do so would have an adverse effect on it.
(b) If a Lender changes its applicable lending office (other than (i) pursuant to paragraph clause (c) belowbelow or (ii) after an Event of Default under Subsection 9.1(a), (b), (h) or (i) has occurred and is continuing) and the effect of such change, as of the date of such change, would be to cause the Borrower to become obligated to pay any additional amount under subsection Subsection 4.10 or 4.11, the Borrower shall not be obligated to pay such additional amount.
(c) If a condition or an event occurs which would, or would upon the passage of time or giving of notice, result in the payment of any additional amount to any Lender or Agent by the Borrower pursuant to subsection Subsection 4.10 or 4.114.11 or result in Affected Loans or commitments to make Affected Loans being automatically converted to ABR Loans or commitments to make ABR Loans, as the case may be, pursuant to Subsection 4.9, such Lender or Agent shall promptly notify the Borrower and the Administrative Agent and shall take such steps as may reasonably be available to it to mitigate the effects of such condition or event (which shall include efforts to rebook the Loans held by such Lender at another lending office, or through another branch or an affiliate, of such Lender); provided that such Lender Agent shall not be required to take any step that, in its reasonable judgment, would be materially disadvantageous to its business or operations or would require it to incur additional costs (unless the Borrower agrees to reimburse such Lender for the reasonable incremental out-of-pocket costs thereof).take
(d) If the Borrower shall become obligated to pay additional amounts pursuant to subsection Subsection 4.10 or 4.11 and any affected Lender shall not have promptly taken steps necessary to avoid the need for payments under subsection Subsection 4.10 or 4.114.11 or if Affected Loans or commitments to make Affected Loans are automatically converted to ABR Loans or commitments to make ABR Loans, as the case may be, under Subsection 4.9 and any affected Lender shall not have promptly taken steps necessary to avoid the need for such conversion under Subsection 4.9, the Borrower shall have the right, for so long as such obligation remains, (i) with the assistance of the Administrative Agent, Agent to seek one or more substitute Lenders reasonably satisfactory to the Administrative Agent and the Borrower to purchase the affected LoanLoan or Commitment, in whole or in part, at an aggregate price no less than such Loan’s or Commitment’s principal amount plus accrued interest, and assume the affected obligations under this Agreement, or (ii) so long as no Event of Default under Subsection 9.1(a), (b), (h) or (i) then exists or will exist immediately after giving effect to the respective prepayment, upon at least four Business Days’ irrevocable notice to the Administrative Agent, Agent to prepay the affected Loan, in whole or in part, subject to subsection 4.12, without premium or penalty. In the case of the substitution of a Lender, then, the Borrower, the Administrative Agent, the affected Lender, and any substitute Lender shall execute and deliver an appropriately completed Assignment and Acceptance pursuant to subsection 13.6(bSubsection 11.6(b) to effect the assignment of rights to, and the assumption of obligations by, the substitute Lender; provided that any fees required to be paid by subsection 13.6(bSubsection 11.6(b) in connection with such assignment shall be paid by the Borrower or the substitute Lender. In the case of a prepayment of an affected Loan, the amount specified in the notice shall be due and payable on the date specified therein, together with any accrued interest to such date on the amount prepaid. In the case of each of the substitution of a Lender and of the prepayment of an affected Loan, the Borrower shall first pay the affected Lender any additional amounts owing under subsections Subsections 4.10 and 4.11 (as well as any commitment fees and other amounts then due and owing to such Lender, including, without limitation, including any amounts under subsection this Subsection 4.13) prior to such substitution or prepayment.
. In the case of the substitution of a Lender pursuant to this Subsection 4.13(d), if the Lender being replaced does not execute and deliver to the Administrative Agent a duly completed Assignment and Acceptance and/or any other documentation necessary to reflect such replacement by the later of (a) the date on which the assignee Lender executes and delivers such Assignment and Acceptance and/or such other documentation and (b) the date as of which all obligations of the Borrower owing to such replaced Lender relating to the Loans and participations so assigned shall be paid in full by the assignee Lender and/or the Borrower to such Lender being replaced, then the Lender being replaced shall be deemed to have executed and delivered such Assignment and Acceptance and/or such other documentation as of such date and the Borrower shall be entitled (but not obligated) to execute and deliver such Assignment and Acceptance and/or such other documentation on behalf of such Lender. 126 (e) For purposes of subsections 4.10 and 4.11, a change in treaty, law, rule or regulation shall not include the ratification or entry into force of (i) the protocol amending the income tax treaty between the Netherlands and the United States, signed October 15, 1995, and (ii) the income tax treaty between Italy and the United States, signed August 25, 1999.
(f) If the Administrative any Agent or any Lender receives a refund directly attributable to taxes Taxes for which the Borrower has made additional payments pursuant to subsection Subsection 4.10(a) or 4.11(a), the Administrative such Agent or such Lender, as the case may be, shall promptly pay such refund (together with any interest with respect thereto received from the relevant taxing authority, but net of any reasonable cost incurred in connection therewith) to the Borrower, ; provided, however, that the Borrower agrees promptly to return such refund (together with any interest with respect thereto due to the relevant taxing authority) (free of all Non-Excluded Taxes) to the Administrative such Agent or the applicable Lender, as the case may be, upon receipt of a notice that such refund is required to be repaid to the relevant taxing authority.
(gf) The obligations of a any Agent, Lender or Participant under this subsection Subsection 4.13 shall survive the termination of this Agreement and the payment of the Term Loans and all amounts payable hereunder.. SECTION 5 Representations and Warranties To induce the Administrative Agent and each Lender to make the Extensions of Credit requested to be made by it on the Closing Date, the Borrower with respect to itself and its Restricted Subsidiaries, hereby represents and warrants, on the Closing Date, after giving effect to the Transactions (solely to the extent required to be true and correct for such Extension of Credit pursuant to Subsection 6.1), to the Administrative Agent and each Lender that:
Appears in 1 contract
Sources: Term Loan Credit Agreement (Cornerstone Building Brands, Inc.)
Certain Rules Relating to the Payment of Additional Amounts. (a) Upon the request, and at the expense, expense of the Parent Borrower, each Lender to which the any Borrower is required to pay any additional amount pursuant to subsection Section 4.10 or 4.11, and any Participant in respect of whose participation such payment is required, shall reasonably afford the any Borrower the opportunity to contest, and reasonably cooperate with the such Borrower in contesting, the imposition of any Non-Non- Excluded Tax giving rise to such payment; provided that that
(i) such Lender shall not be required to afford the any Borrower the opportunity to so contest unless the such Borrower shall have confirmed in writing to such Lender its obligation to pay such amounts pursuant to this Agreement and (ii) the Borrower Borrowers shall reimburse such Lender for its reasonable attorneys’ and accountants’ fees and disbursements incurred in so cooperating with the any Borrower in contesting the imposition of such Non-Non- Excluded Tax; provided, however, that notwithstanding the foregoing foregoing, no Lender shall be required to afford the any Borrower the opportunity to contest, or cooperate with the any Borrower in contesting, the imposition of any Non-Excluded Taxes, if such Lender Lender, in its sole discretion in good faith faith, determines that to do so would have an adverse effect on it.
(b) If a Lender changes its applicable lending office (other than pursuant to paragraph (c) below) and the effect of such change, as of the date of such change, would be to cause the any Borrower to become obligated to pay any additional amount under subsection Section 4.10 or 4.11, the such Borrower shall not be obligated to pay such additional amount, except to the extent that, pursuant to Section 4.11, amounts with respect to such Taxes were payable to such Lender immediately before it changed its lending office.
(c) If a condition or an event occurs which would, or would upon the passage of time or giving of notice, result in the payment of any additional amount to any Lender by the any Borrower pursuant to subsection Section 4.10 or 4.114.11 or result in Affected Loans or commitments to make Affected Loans being automatically converted to ABR Loans, Canadian Prime Rate Loans or Loans bearing an alternate rate of interest or commitments to make ABR Loans, Canadian Prime Rate Loans or Loans bearing an alternate rate of interest, as the case may be, pursuant to Section 4.9, such Lender shall promptly notify the Parent Borrower and the Administrative Agent and shall take such steps as may reasonably be available to it to mitigate the effects of such condition or event (which shall include efforts to rebook the Loans and Commitments held by such Lender at another lending office, or through another branch or an affiliate, of such Lender); provided that such Lender shall not be required to take any step that, in its reasonable judgment, would be materially disadvantageous to its business or operations or would require it to incur additional costs (unless the Borrower agrees Borrowers agree to reimburse such Lender for the reasonable incremental out-of-pocket costs thereof).
(d) If the any Borrower shall become obligated to pay additional amounts pursuant to subsection Section 4.10 or 4.11 and any affected Lender shall not have promptly taken steps necessary to avoid the need for payments under subsection Section 4.10 or 4.114.11 or if Affected Loans or commitments to make Affected Loans are automatically converted to ABR Loans, Canadian Prime Rate Loans or Loans bearing an alternate rate of interest or commitments to make ABR Loans, Canadian Prime Rate Loans or Loans bearing an alternate rate of interest, as the case may be, under Section 4.9 and any affected Lender shall not have promptly taken steps necessary to avoid the need for such conversion under Section 4.9, the Parent Borrower shall have the right, for so long as such obligation remains, (i) with the assistance of the Administrative Agent, to seek one or more substitute Lenders reasonably satisfactory to the Administrative Agent and the Parent Borrower to purchase the affected LoanLoan or Commitment or L/C Participation, as the case may be, in whole or in part, at in the case of Loans and Commitments an aggregate price no less than such Loan’s or Commitment’s principal amount plus accrued interest, and assume the affected obligations under this Agreement, or (ii) upon at least four Business Days’ irrevocable notice to the Administrative Agent, to prepay the affected Loan, in whole or in part, subject to subsection Section 4.12, without premium or penaltypenalty and terminate the Revolving Commitments of such Lender. In the case of the substitution of a Lender, the Parent Borrower, the Administrative Agent, the affected Lender, and any substitute Lender shall execute and deliver an appropriately a duly completed Assignment and Acceptance pursuant to subsection 13.6(bSection 11.6(b) to effect the assignment of rights to, and the assumption of obligations by, the substitute Lender; provided that any fees required to be paid by subsection 13.6(bSection 11.6(b) in connection with such assignment shall be paid by the a Borrower or the substitute Lender. In the case of a prepayment of an affected Loan, the amount specified in the notice shall be due and payable on the date specified therein, together with any accrued interest to such date on the amount prepaid. In the case of each of the substitution of a Lender and of the prepayment of an affected Loan, the Borrower Borrowers shall first pay the affected Lender any additional amounts owing under subsections Sections 4.10 and 4.11 (as well as any commitment fees and other amounts then due and owing to such Lender, including, without limitation, including any amounts under subsection this Section 4.13) prior to such substitution or prepayment. In the case of the substitution of a Lender, if the Lender being replaced does not execute and deliver to the Administrative Agent a duly completed Assignment and Acceptance and/or any other documentation necessary to reflect such replacement by the later of (a) the date on which the assignee Lender executes and delivers such Assignment and Acceptance and/or such other documentation and (b) the date as of which all obligations of the Borrowers owing to such replaced Lender relating to the Loans and L/C Participations so assigned shall be paid in full by the assignee Lender to such Lender being replaced, then the Lender being replaced shall be deemed to have executed and delivered such Assignment and Acceptance and/or such other documentation as of such date and the Parent Borrower shall be entitled (but not obligated) to execute and deliver such Assignment and Acceptance and/or such other documentation on behalf of such Lender.
(e) For purposes of subsections 4.10 and 4.11, a change in treaty, law, rule or regulation shall not include the ratification or entry into force of (i) the protocol amending the income tax treaty between the Netherlands and the United States, signed October 15, 1995, and (ii) the income tax treaty between Italy and the United States, signed August 25, 1999.
(f) If the Administrative any Agent or any Lender receives a refund directly attributable to taxes for which the any Borrower has made additional payments pursuant to subsection Section 4.10(a) or 4.11(a), the Administrative such Agent or such Lender, as the case may be, shall promptly pay such refund (together with any interest with respect thereto received from the relevant taxing authority, but net of any reasonable cost incurred in connection therewith) to the such Borrower, ; provided, however, that the Borrower such ▇▇▇▇▇▇▇▇ agrees promptly to return such refund (together with any interest with respect thereto due to the relevant taxing authority) (free of all Non-Excluded Taxes) to the Administrative such Agent or the applicable Lender, as the case may be, upon receipt of a notice that such refund is required to be repaid to the relevant taxing authority.
(gf) The obligations of a any Agent, Lender or Participant under this subsection Section 4.13 shall survive the termination of this Agreement and the payment of the Loans and all amounts payable hereunder.
Appears in 1 contract
Sources: Credit Agreement
Certain Rules Relating to the Payment of Additional Amounts. (a) Upon the request, and at the expense, of the BorrowerBorrower or Blue Star Group, as the case may be, each Lender to which the Borrower or Blue Star Group, as the case may be, is required to pay any additional amount pursuant to subsection 4.10 or 4.11, and any Participant in respect of whose participation such payment is required, shall reasonably afford the Borrower or Blue Star Group, as the case may be, the opportunity to contest, and reasonably cooperate with the Borrower or Blue Star Group, as the case may be, in contesting, the imposition of any Non-Excluded Tax giving rise to such payment; provided that (i) such Lender shall not be required to afford the Borrower or Blue Star Group, as the case may be, the opportunity to so contest unless the Borrower or Blue Star Group, as the case may be, shall have confirmed in writing to such Lender its obligation to pay such amounts pursuant to this Agreement and (ii) the Borrower or Blue Star Group, as the case may be, shall reimburse such Lender for its reasonable attorneys’ ' and accountants’ ' fees and disbursements incurred in so cooperating with the Borrower or Blue Star Group, as the case may be, in contesting the imposition of such Non-Excluded Tax; provided, however, however that notwithstanding the foregoing no Lender shall be required to afford the Borrower or Blue Star Group, as the case may be, the opportunity to contest, or cooperate with the Borrower or Blue Star Group, as the case may be, in contesting, the imposition of any Non-Excluded Taxes, if such Lender in its sole discretion in good faith determines that to do so would have an a material adverse effect on it.
(b) If a Lender changes its applicable lending office (other than pursuant to paragraph (c) below) and the effect of such the change, as of the date of such the change, would be to cause the Borrower or Blue Star Group, as the case may be, to become obligated to pay any additional amount under subsection 4.10 or 4.11, neither the Borrower nor Blue Star Group, as the case may be, shall not be obligated to pay such additional amount.
(c) If a condition or an event occurs which would, or would upon the passage of time or giving of notice, result in the payment of any additional amount to any Lender by the Borrower or Blue Star Group, as the case may be, pursuant to subsection 4.10 or 4.11, such Lender shall promptly notify the Borrower and the Administrative Agent and shall take such steps as may reasonably be available to it and acceptable to the Borrower to mitigate the effects of such condition or event (which shall include efforts to rebook the Loans held by such Lender at another lending office, or through another branch or an affiliate, of such Lender); provided that such Lender shall not be required to take any step that, in its reasonable judgment, would be materially disadvantageous to its business or operations or would require it to incur additional costs (unless the Borrower agrees to reimburse such Lender for the reasonable incremental out-of-of-- pocket costs thereof).
(d) If the Borrower or Blue Star Group, as the case may be, shall become obligated to pay additional amounts pursuant to subsection 4.10 or 4.11 and any affected Lender shall not have promptly taken steps necessary to avoid the need for payments under subsection 4.10 or 4.11, the Borrower shall have the right, for so long as such obligation remains, (ix) with the assistance of the Administrative Agent, to seek one or more substitute Lenders reasonably satisfactory to the Administrative Agent and the Borrower to purchase the affected Loan, in whole or in part, at an aggregate price no less than such Loan’s 's principal amount plus accrued interest, and assume the affected obligations under this Agreement, or (iiy) upon at least four Business Days’ ' irrevocable notice to the Administrative Agent, to prepay the affected Loan, in whole or in part, subject to subsection 4.12, without premium or penalty. In the case of the substitution of a Lender, the Borrower, the Administrative Agent, the affected Lender, and any substitute Lender shall execute and deliver an appropriately completed Assignment and Acceptance pursuant to subsection 13.6(b12.6(c) to effect the assignment of rights to, and the assumption of obligations by, the substitute Lender; provided that any fees required to be paid by pursuant to subsection 13.6(b12.6(e) in connection with such assignment shall be paid by the Borrower or the substitute LenderBorrower. In the case of a prepayment of an affected Loan, the amount specified in the notice shall be due and payable on the date specified therein, together with any accrued interest to such date on the amount prepaid. In the case of each of the substitution of a Lender and of the prepayment of an affected Loan, the Borrower or Blue Star Group, as the case may be, shall first pay the affected Lender any additional amounts owing under subsections 4.10 and 4.11 (as well as any commitment fees and other amounts then due and owing to such Lender, including, without limitation, any amounts under subsection 4.13) prior to such substitution or prepayment.
(e) For purposes of subsections 4.10 and 4.11, a change in treaty, law, rule or regulation shall not include the ratification or entry into force of (i) the protocol amending the income tax treaty between the Netherlands and the United States, signed October 15, 1995, and (ii) the income tax treaty between Italy and the United States, signed August 25, 1999.
(f) If the Administrative Agent or any Lender receives a refund directly attributable to in respect of taxes for which the Borrower or Blue Star Group, as the case may be, has made additional payments pursuant to subsection 4.10(a) or 4.11(a), the Administrative Agent or such Lender, as the case may be, shall promptly pay such refund (together with any interest with respect thereto received from the relevant taxing authority) to the BorrowerBorrower or Blue Star Group, as the case may be, provided, however, that the Borrower or Blue Star Group, as the case may be, agrees promptly to return such refund (together with any interest with respect thereto due to the relevant taxing authority) (free of all Non-Excluded Taxes) to the Administrative Agent or the applicable Lender, as the case may be, upon receipt of a notice that such refund is required to be repaid to the relevant taxing authority.
(f) For purposes of subsections 4.10 and 4.11, a change in treaty, law, rule or regulation shall not include the ratification or entry into force of the income tax treaty between Luxembourg and the United States.
(g) The obligations of a Lender or Participant under this subsection 4.13 shall survive the termination of this Agreement and the payment of the Loans and all amounts payable hereunder.
Appears in 1 contract
Certain Rules Relating to the Payment of Additional Amounts. (a) Upon the request, and at the expense, of the Borrower, each Agent and Lender to which the Borrower is required to pay any additional amount pursuant to subsection 4.10 3.10 or 4.113.11, and any Participant in respect of whose participation such payment is required, shall reasonably afford the Borrower the opportunity to contest, and reasonably cooperate with the Borrower in contesting, the imposition of any Non-Excluded Tax giving rise to such payment; provided that (i) such Agent or Lender shall not be required to afford the Borrower the opportunity to so contest unless the Borrower shall have confirmed in writing to such Agent or Lender its obligation to pay such amounts pursuant to this Agreement and (ii) the Borrower shall reimburse such Agent or Lender for its reasonable attorneys’ and accountants’ fees and disbursements incurred in so cooperating with the Borrower in contesting the imposition of such Non-Excluded Tax; provided, however, that notwithstanding the foregoing no Agent or Lender shall be required to afford the Borrower the opportunity to contest, or cooperate with the Borrower in contesting, the imposition of any Non-Excluded Taxes, if such Agent or Lender in its sole discretion in good faith determines that to do so would have an adverse effect on it.
(b) If a Lender changes its applicable lending office (other than (i) pursuant to paragraph (c) belowbelow or (ii) after an Event of Default under subsection 8(a), (b), (g) or (h) has occurred and is continuing) and the effect of such change, as of the date of such change, would be to cause the Borrower to become obligated to pay any additional amount under subsection 4.10 3.10 or 4.113.11, the Borrower shall not be obligated to pay such additional amount.
(c) If a condition or an event occurs which would, or would upon the passage of time or giving of notice, result in the payment of any additional amount to any Lender by the Borrower pursuant to subsection 4.10 3.10 or 4.113.11, such Lender shall promptly after becoming aware of such event or condition notify the Borrower and the Administrative Agent and shall take such steps as may reasonably be available to it to mitigate the effects of such condition or event (which shall include efforts to rebook the Senior Interim Loans held by such Lender at another lending office, or through another branch or an affiliate, of such Lender); provided that such Lender shall not be required to take any step that, in its reasonable judgment, would be materially disadvantageous to its business or operations or would require it to incur additional costs (unless the Borrower agrees to reimburse such Lender for the reasonable incremental out-of-pocket costs thereof).
(d) If the Borrower shall become obligated to pay additional amounts pursuant to subsection 4.10 3.10 or 4.11 3.11 and any affected Lender shall not have promptly taken steps necessary to avoid the need for payments under subsection 4.10 3.10 or 4.113.11, the Borrower shall have the right, for so long as such obligation remains, (i) with the assistance of the Administrative Agent, to seek one or more substitute Lenders reasonably satisfactory to the Administrative Agent and the Borrower to purchase the affected Senior Interim Loan, in whole or in part, at an aggregate price no less than such Senior Interim Loan’s principal amount plus accrued interest, and assume the affected obligations under this Agreement, or (ii) so long as no Default or Event of Default then exists or will exist immediately after giving effect to the respective prepayment, upon at least four Business Days’ irrevocable notice to the Administrative Agent, to prepay the affected Senior Interim Loan, in whole or in part, subject to subsection 4.123.12, without premium or penalty. In the case of the substitution of a Lender, the Borrower, the Administrative Agent, the affected Lender, and any substitute Lender shall execute and deliver an appropriately completed Assignment and Acceptance pursuant to subsection 13.6(b10.6(b) to effect the assignment of rights to, and the assumption of obligations by, the substitute Lender; provided that any fees required to be paid by subsection 13.6(b10.6(b) in connection with such assignment shall be paid by the Borrower or the substitute Lender. In the case of a prepayment of an affected Senior Interim Loan, the amount specified in the notice shall be due and payable on the date specified therein, together with any accrued interest to such date on the amount prepaid. In the case of each of the substitution of a Lender and of the prepayment of an affected Senior Interim Loan, the Borrower shall first pay the affected Lender any additional amounts owing under subsections 4.10 3.10 and 4.11 3.11 (as well as any commitment fees and other amounts then due and owing to such Lender, including, without limitation, including any amounts under this subsection 4.133.13) prior to such substitution or prepayment.
(e) For purposes of subsections 4.10 and 4.11, a change in treaty, law, rule or regulation shall not include the ratification or entry into force of (i) the protocol amending the income tax treaty between the Netherlands and the United States, signed October 15, 1995, and (ii) the income tax treaty between Italy and the United States, signed August 25, 1999.
(f) If the Administrative any Agent or any Lender receives a refund directly attributable to taxes for which the Borrower has made additional payments pursuant to subsection 4.10(a3.10(a) or 4.11(a3.11(a), the Administrative such Agent or such Lender, as the case may be, shall promptly pay such refund (together with any interest with respect thereto received from the relevant taxing authority, but net of any reasonable cost incurred in connection therewith) to the Borrower, ; provided, however, that the Borrower agrees promptly to return such refund (together with any interest with respect thereto due to the relevant taxing authority) (free of all Non-Excluded Taxes) to the Administrative such Agent or the applicable Lender, as the case may be, upon receipt of a notice that such refund is required to be repaid to the relevant taxing authority.
(gf) The obligations of a any Agent, Lender or Participant under this subsection 4.13 3.13 shall survive the termination of this Agreement and the payment of the Senior Interim Loans and all amounts payable hereunder.
Appears in 1 contract
Sources: Senior Interim Loan Credit Agreement (Servicemaster Co)
Certain Rules Relating to the Payment of Additional Amounts. (a) Upon the request, and at the expense, of the Borrower, each Lender to which the Borrower is required to pay any additional amount pursuant to subsection 4.10 Section 2.19 or 4.112.20, and any Participant participant in respect of whose participation such payment is required, shall reasonably afford the Borrower the opportunity to contest, and reasonably cooperate with the Borrower in contesting, the imposition of any Non-Excluded Tax giving rise to such payment; provided that (i) such Lender shall not be required to afford the Borrower the opportunity so to so contest unless the Borrower shall have confirmed in writing to such Lender its obligation to pay such amounts pursuant to this Agreement and (ii) the Borrower shall reimburse such Lender for its 49 reasonable attorneys’ ' and accountants’ ' fees and disbursements incurred in so cooperating with the Borrower in contesting the imposition of such Non-Excluded Tax; provided, however, that notwithstanding the foregoing no Lender shall be required to afford the Borrower the opportunity to contest, or cooperate with the Borrower in contesting, the imposition of any Non-Excluded Taxes, if such Lender in its sole discretion in good faith determines that to do so would have an adverse effect on it.
(b) If a Lender changes its applicable lending office (other than pursuant to paragraph (c) below) and the effect of such change, as of the date of such change, would be to cause the Borrower to become obligated to pay any additional amount under subsection 4.10 Section 2.19 or 4.112.20, the Borrower shall not be obligated to pay such additional amount.
(c) If a condition or an event occurs which would, or would upon the passage of time or giving of notice, result in the payment of any additional amount to any Lender by the Borrower pursuant to subsection 4.10 Section 2.19 or 4.112.20, such Lender shall promptly notify the Borrower and the Administrative Agent and shall take such steps as may reasonably be available to it to mitigate the effects of such condition or event (which shall include efforts to rebook the Loans held by such Lender at another lending office, or through another branch or an affiliate, of such Lender); provided that such Lender shall not be required to take any step that, in its reasonable judgment, would be materially disadvantageous to its business or operations or would require it to incur additional costs (unless the such Borrower agrees to reimburse such Lender for the reasonable incremental out-ofor-pocket costs thereof).
(d) If the Borrower shall become obligated to pay additional amounts pursuant to subsection 4.10 Section 2.19 or 4.11 2.20 and any affected Lender shall not have promptly taken steps necessary to avoid the need for payments under subsection 4.10 Section 2.19 or 4.112.20, the Borrower shall have the right, for so long as such obligation remains, (ix) with the assistance of the Administrative Agent, to seek one or more substitute Lenders reasonably satisfactory to the Administrative Agent and the Borrower to purchase the affected Loan, Loan in whole or in part, at an aggregate price no less than such Loan’s 's principal amount plus accrued interest, and assume the affected obligations under this Agreement, or (iiy) upon at least four Business Days’ Days irrevocable notice to the Administrative Agent, to prepay the affected Loan, in whole or in part, subject to subsection 4.12Section 2.19 or 2.20, without premium or penalty. In the case of the substitution of a Lender, the Borrower, the Administrative Agent, the affected Lenderlender, and any substitute Lender shall execute and deliver an appropriately completed Assignment and Acceptance pursuant to subsection 13.6(bSection 10.6(c) to effect the assignment of rights to, and the assumption of obligations by, the substitute Lender; provided provided, that any fees required to be paid by subsection 13.6(bSection 10.6(e) in connection with such assignment shall be paid by the Borrower or the substitute LenderLender and provided, further, that the Borrower shall be obligated to pay to the affected Lender an amount equal to any amount that would have been payable to such Lender pursuant to Section 2.21 if the affected Loan had been prepaid in full on the date of the assignment thereof pursuant to this paragraph. In the case of a prepayment of an affected Loan, the amount specified in the notice shall be due and payable on the date specified therein, together with any accrued interest to such date on the amount prepaid. In the case of each of the substitution of a Lender and of the prepayment of an affected Loan, the Borrower shall first pay the affected Lender any additional amounts owing under subsections 4.10 Sections 2.19 and 4.11 2.20 (as well as any 50 commitment fees and other amounts then due and an owing to such Lender, including, without limitation, any amounts under subsection 4.13Section 2.21) prior to such substitution or prepayment.
(e) For purposes of subsections 4.10 and 4.11, a change in treaty, law, rule or regulation shall not include the ratification or entry into force of (i) the protocol amending the income tax treaty between the Netherlands and the United States, signed October 15, 1995, and (ii) the income tax treaty between Italy and the United States, signed August 25, 1999.
(f) If the Administrative Agent or any Lender or any Participant receives a refund directly attributable to taxes for which the Borrower has made additional payments pursuant to subsection 4.10(aSection 2.19(a) or 4.11(a2.20(a), the Administrative Agent or such Lender, as the case may be, shall promptly pay such refund (together with any interest with respect thereto received from the relevant taxing authority) to the Borrower, provided, however, that the Borrower agrees promptly to return such refund (together with any interest with respect thereto due to the relevant taxing authority) (free of all Non-Excluded Taxes) to the Administrative Agent or the applicable Lender, as the case may be, upon receipt of a notice that such refund is required to be repaid to the relevant taxing authority.
(gf) The obligations of a Lender or Participant under this subsection 4.13 Section 2.23 shall survive the termination of this Agreement and the payment of the Loans and all amounts payable hereunder.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Day International Group Inc)
Certain Rules Relating to the Payment of Additional Amounts. (a) Upon the request, and at the expense, expense of the Borrower, each Lender and Agent to which the Borrower is required to pay any additional amount pursuant to subsection 4.10 or Section 4.11, and any Participant in respect of whose participation such payment is required, shall reasonably afford the Borrower the opportunity to contest, and reasonably cooperate with the Borrower in contesting, the imposition of any Non-Excluded Tax giving rise to such payment; provided that (i) such Lender or Agent shall not be required to afford the Borrower the opportunity to so contest unless the Borrower shall have confirmed in writing to such Lender or Agent its obligation to pay such amounts pursuant to this Agreement and (ii) the Borrower shall reimburse such Lender or Agent for its reasonable attorneys’ and accountants’ fees and disbursements incurred in so cooperating with the Borrower in contesting the imposition of such Non-Excluded Tax; provided, however, that notwithstanding the foregoing no Lender or Agent shall be required to afford the Borrower the opportunity to contest, or cooperate with the Borrower in contesting, the imposition of any Non-Excluded Taxes, if such Lender or Agent in its sole discretion in good faith determines that to do so would have an adverse effect on it.
(b) If a Lender changes its applicable lending office (other than (i) pursuant to paragraph clause (c) belowbelow or (ii) after an Event of Default under Section 9.1(a) or (f) has occurred and is continuing) and the effect of such change, as of the date of such change, would be to cause the Borrower to become obligated to pay any additional amount under subsection Section 4.10 or 4.11, the Borrower shall not be obligated to pay such additional amount.
(c) If a condition or an event occurs which would, or would upon the passage of time or giving of notice, result in the payment of any additional amount to any Lender or Agent by the Borrower pursuant to subsection Section 4.10 or 4.114.11 or result in Affected Loans or commitments to make Affected Loans being automatically converted to ABR Loans or commitments to make ABR Loans, as the case may be, pursuant to Section 4.9, such Lender or Agent shall promptly notify the Borrower and the Administrative Agent and shall take such steps as may reasonably be available to it to mitigate the effects of such condition or event (which shall include efforts to rebook the Term Loans held by such Lender at another lending office, or through another branch or an affiliate, of such Lender); provided that such Lender or Agent shall not be required to take any step that, in its reasonable judgment, would be materially disadvantageous to its business or operations or would require it to incur additional costs (unless the Borrower agrees to reimburse such Lender or Agent for the reasonable incremental out-of-pocket costs thereof).. 1003003016v2 #895889271003585382v58
(d) If the Borrower shall become obligated to pay additional amounts pursuant to subsection Section 4.10 or 4.11 and any affected Lender shall not have promptly taken steps necessary to avoid the need for payments under subsection Section 4.10 or 4.114.11 or if Affected Loans or commitments to make Affected Loans are automatically converted to ABR Loans or commitments to make ABR Loans, as the case may be, under Section 4.9 and any affected Lender shall not have promptly taken steps necessary to avoid the need for such conversion under Section 4.9, the Borrower shall have the right, for so long as such obligation remains, (i) with the assistance of the Administrative Agent, Agent to seek one or more substitute Lenders reasonably satisfactory to the Administrative Agent and the Borrower to purchase the affected Term Loan, in whole or in part, at an aggregate price no less than such Term Loan’s principal amount plus accrued interest, and assume the affected obligations under this Agreement, or (ii) so long as no Event of Default under Section 9.1(a) or (f) then exists or will exist immediately after giving effect to the respective prepayment, upon at least four Business Days’ irrevocable notice to the Administrative Agent, Agent to prepay the affected Term Loan, in whole or in part, subject to subsection Section 4.12, without premium or penalty. In the case of the substitution of a Lender, then, the Borrower, the Administrative Agent, the affected Lender, and any substitute Lender shall execute and deliver an appropriately completed Assignment and Acceptance pursuant to subsection 13.6(bSection 11.6(b) to effect the assignment of rights to, and the assumption of obligations by, the substitute Lender; provided that any fees required to be paid by subsection 13.6(bSection 11.6(b) in connection with such assignment shall be paid by the Borrower or the substitute Lender. In the case of a prepayment of an affected Term Loan, the amount specified in the notice shall be due and payable on the date specified therein, together with any accrued interest to such date on the amount prepaid. In the case of each of the substitution of a Lender and of the prepayment of an affected Term Loan, the Borrower shall first pay the affected Lender any additional amounts owing under subsections Sections 4.10 and 4.11 (as well as any commitment fees and other amounts then due and owing to such Lender, including, without limitation, including any amounts under subsection this Section 4.13) prior to such substitution or prepayment. In the case of the substitution of a Lender pursuant to this Section 4.13(d), if the Lender being replaced does not execute and deliver to the Administrative Agent a duly completed Assignment and Acceptance and/or any other documentation necessary to reflect such replacement by the later of (a) the date on which the assignee Lender executes and delivers such Assignment and Acceptance and/or such other documentation and (b) the date as of which all obligations of the Borrower owing to such replaced Lender relating to the Term Loans and participations so assigned shall be paid in full by the assignee Lender and/or the Borrower to such Lender being replaced, then the Lender being replaced shall be deemed to have executed and delivered such Assignment and Acceptance and/or such other documentation as of such date and the Borrower shall be entitled (but not obligated) to execute and deliver such Assignment and Acceptance and/or such other documentation on behalf of such Lender.
(e) For purposes of subsections 4.10 and 4.11, a change in treaty, law, rule or regulation shall not include the ratification or entry into force of (i) the protocol amending the income tax treaty between the Netherlands and the United States, signed October 15, 1995, and (ii) the income tax treaty between Italy and the United States, signed August 25, 1999.
(f) If the Administrative any Agent or any Lender receives a refund directly attributable to taxes Taxes for which the Borrower has made additional payments pursuant to subsection 4.10(a) or Section 4.11(a), the Administrative such Agent or such Lender, as the case may be, shall promptly pay such refund (together with any interest with respect thereto received from the relevant taxing authority, but net of any reasonable cost incurred in connection therewith) to the Borrower, ; provided, however, that the Borrower agrees promptly to return such refund (together with any interest with respect thereto due to the relevant taxing authority) (free of all Non-Excluded Taxes) to the Administrative such Agent or the applicable Lender, as the case may be, upon receipt of a notice that such refund is required to be repaid to the relevant taxing authority.. 1003003016v2 #895889271003585382v58
(gf) The obligations of a any Agent, Lender or Participant under this subsection Section 4.13 shall survive the termination of this Agreement and the payment of the Term Loans and all amounts payable hereunder.
Appears in 1 contract
Sources: Incremental Commitment Amendment (Warner Music Group Corp.)
Certain Rules Relating to the Payment of Additional Amounts. (a) Upon the request, and at the expense, expense of the BorrowerBorrowers, each Lender to which the Borrower is Borrowers are required to pay any additional amount pursuant to subsection 4.10 3.10 or 4.113.11, and any Participant in respect of whose participation such payment is required, shall reasonably afford the Parent Borrower the opportunity to contest, and reasonably cooperate with the Parent Borrower in contesting, the imposition of any Non-Excluded Tax giving rise to such payment; provided that (i) such Lender shall not be required to afford the Parent Borrower the opportunity to so contest unless the Borrower Borrowers shall have confirmed in writing to such Lender its their joint and several obligation to pay such amounts pursuant to this Agreement and (ii) the Borrower Borrowers shall reimburse such Lender for its reasonable attorneys’ and accountants’ fees and disbursements incurred in so cooperating with the Parent Borrower in contesting the imposition of such Non-Excluded Tax; provided, however, that notwithstanding the foregoing no Lender shall be required to afford the Parent Borrower the opportunity to contest, or cooperate with the Parent Borrower in contesting, the imposition of any Non-Excluded Taxes, if such Lender in its sole discretion in good faith determines that to do so would have an adverse effect on it.
(b) If a Lender changes its applicable lending office (other than pursuant to paragraph (c) below) and the effect of such change, as of the date of such change, would be to cause the Borrower Borrowers to become obligated to pay any additional amount under subsection 4.10 3.10 or 4.113.11, the Borrower Borrowers shall not be obligated to pay such additional amount.
(c) If a condition or an event occurs which would, or would upon the passage of time or giving of notice, result in the payment of any additional amount to any Lender by the Borrower Borrowers pursuant to subsection 4.10 3.10 or 4.113.11, such Lender shall promptly notify the Parent Borrower and the Administrative Agent and shall take such steps as may reasonably be available to it to mitigate the effects of such condition or event (which shall include efforts to rebook the Term Loans held by such Lender at another lending office, or through another branch or an affiliate, of such Lender); provided that such Lender shall not be required to take any step that, in its reasonable judgment, would be materially disadvantageous to its business or operations or would require it to incur additional costs (unless the Borrower agrees Borrowers agree to reimburse such Lender for the reasonable incremental out-of-pocket costs thereof).
(d) If the Borrower Borrowers shall become obligated to pay additional amounts pursuant to subsection 4.10 3.10 or 4.11 3.11 and any affected Lender shall not have promptly taken steps necessary to avoid the need for payments under subsection 4.10 3.10 or 4.113.11, the Parent Borrower shall have the right, for so long as such obligation remains, (i) with the assistance of the Administrative Agent, to seek one or more substitute Lenders reasonably satisfactory to the Administrative Agent and the Parent Borrower to purchase the affected Term Loan, in whole or in part, at an aggregate price no less than such Term Loan’s principal amount plus accrued interest, and assume the affected obligations under this Agreement, or (ii) so long as no Default or Event of Default then exists or will exist immediately after giving effect to the respective prepayment, upon at least four Business Days’ irrevocable notice to the Administrative Agent, to prepay the affected Term Loan, in whole or in part, subject to subsection 4.12, without premium or penalty. In the case of the substitution of a Lender, the Borrower, the Administrative Agent, the affected Lender, except as otherwise provided in subsections 3.6(a) and any substitute Lender shall execute and deliver an appropriately completed Assignment and Acceptance pursuant to subsection 13.6(b) to effect the assignment of rights to, and the assumption of obligations by, the substitute Lender; provided that any fees required to be paid by subsection 13.6(b) in connection with such assignment shall be paid by the Borrower or the substitute Lender. In the case of a prepayment of an affected Loan, the amount specified in the notice shall be due and payable on the date specified therein, together with any accrued interest to such date on the amount prepaid. In the case of each of the substitution of a Lender and of the prepayment of an affected Loan, the Borrower shall first pay the affected Lender any additional amounts owing under subsections 4.10 and 4.11 (as well as any commitment fees and other amounts then due and owing to such Lender, including, without limitation, any amounts under subsection 4.13) prior to such substitution or prepayment3.
(e) For purposes of subsections 4.10 and 4.11, a change in treaty, law, rule or regulation shall not include the ratification or entry into force of (i) the protocol amending the income tax treaty between the Netherlands and the United States, signed October 15, 1995, and (ii) the income tax treaty between Italy and the United States, signed August 25, 1999.
(f) If the Administrative Agent or any Lender receives a refund directly attributable to taxes for which the Borrower has made additional payments pursuant to subsection 4.10(a) or 4.11(a), the Administrative Agent or such Lender, as the case may be, shall promptly pay such refund (together with any interest with respect thereto received from the relevant taxing authority) to the Borrower, provided, however, that the Borrower agrees promptly to return such refund (together with any interest with respect thereto due to the relevant taxing authority) (free of all Non-Excluded Taxes) to the Administrative Agent or the applicable Lender, as the case may be, upon receipt of a notice that such refund is required to be repaid to the relevant taxing authority.
(g) The obligations of a Lender or Participant under this subsection 4.13 shall survive the termination of this Agreement and the payment of the Loans and all amounts payable hereunder.
Appears in 1 contract
Sources: Second Lien Term Loan Credit Agreement (RSC Holdings Inc.)
Certain Rules Relating to the Payment of Additional Amounts. (a) Upon the request, and at the expense, of the Borrower, each Lender to which the Borrower is required to pay any additional amount pursuant to subsection 4.10 Section 2.19 or 4.112.20, and any Participant participant in respect of whose participation such payment is required, shall reasonably afford the Borrower the opportunity to contest, and reasonably cooperate with the Borrower in contesting, the imposition of any Non-Excluded Tax giving rise to such payment; provided that (i) such Lender shall not be required to afford the Borrower the opportunity so to so contest unless the Borrower shall have confirmed in writing to such Lender its obligation to pay such amounts pursuant to this Agreement and (ii) the Borrower shall reimburse such Lender for its reasonable attorneys’ ' and accountants’ ' fees and disbursements incurred in so cooperating with the Borrower in contesting the imposition of such Non-Excluded Tax; provided, however, that notwithstanding the foregoing no Lender shall be required to afford the Borrower the opportunity to contest, or cooperate with the Borrower in contesting, the imposition of any Non-Excluded Taxes, if such Lender in its sole discretion in good faith determines that to do so would have an adverse effect on it.
(b) If a Lender changes its applicable lending office (other than pursuant to paragraph (c) below) and the effect of such change, as of the date of such change, would be to cause the Borrower to become obligated to pay any additional amount under subsection 4.10 Section 2.19 or 4.112.20, the Borrower shall not be obligated to pay such additional amount.
(c) If a condition or an event occurs which would, or would upon the passage of time or giving of notice, result in the payment of any additional amount to any Lender by the Borrower pursuant to subsection 4.10 Section 2.19 or 4.112.20, such Lender shall promptly notify the Borrower and the Administrative Agent and shall take such steps as may reasonably be available to it to mitigate the effects of such condition or event (which shall include efforts to rebook the Loans held by such Lender at another lending office, or through another branch or an affiliate, of such Lender); provided that such Lender shall not be required to take any step that, in its reasonable judgment, would be materially disadvantageous to its business or operations or would require it to incur additional costs (unless the such Borrower agrees to reimburse such Lender for the reasonable incremental out-ofor-pocket costs thereof).
(d) If the Borrower shall become obligated to pay additional amounts pursuant to subsection 4.10 Section 2.19 or 4.11 2.20 and any affected Lender shall not have promptly taken steps necessary to avoid the need for payments under subsection 4.10 Section 2.19 or 4.112.20, the Borrower shall have the right, for so long as such obligation remains, (ix) with the assistance of the Administrative Agent, to seek one or more substitute Lenders reasonably satisfactory to the Administrative Agent and the Borrower to purchase the affected Loan, Loan in whole or in part, at an aggregate price no less than such Loan’s 's principal amount plus accrued interest, and assume the affected obligations under this Agreement, or (iiy) upon at least four Business Days’ Days irrevocable notice to the Administrative Agent, to prepay the affected Loan, in whole or in part, subject to subsection 4.12Section 2.19 or 2.20, without premium or penalty. In the case of the substitution of a Lender, the Borrower, the Administrative Agent, the affected Lenderlender, and any substitute Lender shall execute and deliver an appropriately completed Assignment and Acceptance pursuant to subsection 13.6(bSection 10.6(c) to effect the assignment of rights to, and the assumption of obligations by, the substitute Lender; provided provided, that any fees required to be paid by subsection 13.6(bSection 10.6(e) in connection with such assignment shall be paid by the Borrower or the substitute LenderLender and provided, further, that the Borrower shall be obligated to pay to the affected Lender an amount equal to any amount that would have been payable to such Lender pursuant to Section 2.21 if the affected Loan had been prepaid in full on the date of the assignment thereof pursuant to this paragraph. In the case of a prepayment of an affected Loan, the amount specified in the notice shall be due and payable on the date specified therein, together with any accrued interest to such date on the amount prepaid. In the case of each of the substitution of a Lender and of the prepayment of an affected Loan, the Borrower shall first pay the affected Lender any additional amounts owing under subsections 4.10 Sections 2.19 and 4.11 2.20 (as well as any commitment fees and other amounts then due and an owing to such Lender, including, without limitation, any amounts under subsection 4.13Section 2.21) prior to such substitution or prepayment.
(e) For purposes of subsections 4.10 and 4.11, a change in treaty, law, rule or regulation shall not include the ratification or entry into force of (i) the protocol amending the income tax treaty between the Netherlands and the United States, signed October 15, 1995, and (ii) the income tax treaty between Italy and the United States, signed August 25, 1999.
(f) If the Administrative Agent or any Lender or any Participant receives a refund directly attributable to taxes for which the Borrower has made additional payments pursuant to subsection 4.10(aSection 2.19(a) or 4.11(a2.20(a), the Administrative Agent or such Lender, as the case may be, shall promptly pay such refund (together with any interest with respect thereto received from the relevant taxing authority) to the Borrower, provided, however, that the Borrower agrees promptly to return such refund (together with any interest with respect thereto due to the relevant taxing authority) (free of all Non-Excluded Taxes) to the Administrative Agent or the applicable Lender, as the case may be, upon receipt of a notice that such refund is required to be repaid to the relevant taxing authority.
(gf) The obligations of a Lender or Participant under this subsection 4.13 Section 2.23 shall survive the termination of this Agreement and the payment of the Loans and all amounts payable hereunder.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Day International Group Inc)
Certain Rules Relating to the Payment of Additional Amounts. (a) Upon the request, and at the expense, expense of the applicable Borrower, each Lender to which any of the Borrower Borrowers is required to pay any additional amount pursuant to subsection 4.10 or 4.11, and any Participant in respect of whose participation such payment is required, shall reasonably afford the such Borrower the opportunity to contest, and reasonably cooperate with the such Borrower in contesting, the imposition of any Non-Excluded Tax giving rise to such payment; provided that (i) such Lender shall not be required to afford the such Borrower the opportunity to so contest unless the such Borrower shall have confirmed in writing to such Lender its obligation to pay such amounts pursuant to this Agreement and (ii) the such Borrower shall reimburse such Lender for its reasonable attorneys’ and accountants’ fees and disbursements incurred in so cooperating with the such Borrower in contesting the imposition of such Non-Excluded Tax; provided, however, that notwithstanding the foregoing no Lender shall be required to afford the any Borrower the opportunity to contest, or cooperate with the such Borrower in contesting, the imposition of any Non-Excluded Taxes, if such Lender in its sole discretion in good faith determines that to do so would have an adverse effect on it.
(b) If a Lender changes its applicable lending office (other than (i) pursuant to paragraph (c) belowbelow or (ii) after an Event of Default under subsection 9(a) or (f) has occurred and is continuing) and the effect of such change, as of the date of such change, would be to cause any of the Borrower Borrowers to become obligated to pay any additional amount under subsection 4.10 or 4.11, the such Borrower shall not be obligated to pay such additional amount.
(c) If a condition or an event occurs which would, or would upon the passage of time or giving of notice, result in the payment of any additional amount to any Lender by any of the Borrower Borrowers pursuant to subsection 4.10 or 4.11, such Lender shall promptly notify the applicable Borrower and the U.S. Administrative Agent and shall take such steps as may reasonably be available to it to mitigate the effects of such condition or event (which shall include efforts to rebook the Loans held by such Lender at another lending office, or through another branch or an affiliate, of such Lender); provided that such Lender shall not be required to take any step that, in its reasonable judgment, would be materially disadvantageous to its business or operations or would require it to incur additional costs (unless the Parent Borrower agrees to reimburse such Lender for the reasonable incremental out-of-pocket costs thereof).
(d) If any of the Borrower Borrowers shall become obligated to pay additional amounts pursuant to subsection 4.10 or 4.11 and any affected Lender shall not have promptly taken steps necessary to avoid the need for payments under subsection 4.10 or 4.11, the applicable Borrower shall have the right, for so long as such obligation remains, (i) with the assistance of the U.S. Administrative Agent, to seek one or more substitute Lenders reasonably satisfactory to the U.S. Administrative Agent and the such Borrower to purchase the affected Loan, in whole or in part, at an aggregate price no less than such Loan’s (other than a Bankers’ Acceptance Loan) principal amount plus accrued interestinterest and, and in the case of any Bankers’ Acceptance Loan, to provide cash collateral in an amount equal to the face amount of each affected Bankers’ Acceptance Loan pursuant to arrangements satisfactory to the affected Lender, and, in each case, assume the affected obligations under this Agreement, or (ii) so long as no Default or Event of Default then exists or will exist immediately after giving effect to the respective prepayment, upon at least four (4) Business Days’ irrevocable notice to the U.S. Administrative Agent (and, if applicable, the Canadian Administrative Agent), to prepay the affected Loan (other than a Bankers’ Acceptance Loan), in whole or in part, subject to subsection 4.12, without premium or penalty, except as otherwise provided in subsection 4.12, and in the case of any Bankers’ Acceptance Loan, to provide cash collateral in an amount equal to the face amount of each affected Bankers’ Acceptance Loan pursuant to arrangements satisfactory to the affected Lender. In the case of the substitution of a Lender, the Parent Borrower (and any other applicable Borrower), the U.S. Administrative Agent, the affected Lender, and any substitute Lender shall execute and deliver an appropriately completed Assignment and Acceptance pursuant to subsection 13.6(b11.6(b) to effect the assignment of rights to, and the assumption of obligations by, the substitute Lender; provided that any fees required to be paid by subsection 13.6(b11.6(b) in connection with such assignment shall be paid by the such Borrower or the substitute Lender. In the case of a prepayment of an affected Loan, the amount specified in the notice shall be due and payable on the date specified therein, together with any accrued interest to such date on the amount prepaid. In the case of each of the substitution of a Lender and of the prepayment of an affected Loan, the applicable Borrower shall first pay the affected Lender any additional amounts owing under subsections 4.10 and 4.11 (as well as any commitment fees and other amounts then due and owing to such Lender, including, without limitation, including any amounts under this subsection 4.13) prior to such substitution or prepayment.
(e) For purposes of subsections 4.10 and 4.11, a change in treaty, law, rule or regulation shall not include the ratification or entry into force of (i) the protocol amending the income tax treaty between the Netherlands and the United States, signed October 15, 1995, and (ii) the income tax treaty between Italy and the United States, signed August 25, 1999.
(f) If the Administrative any Agent or any Lender receives a refund directly attributable to taxes for which any of the Borrower Borrowers has made additional payments pursuant to subsection 4.10(a) or 4.11(a), the Administrative such Agent or such Lender, as the case may be, shall promptly pay such refund (together with any interest with respect thereto received from the relevant taxing authority, but net of any reasonable cost incurred in connection therewith) to the such Borrower, ; provided, however, that the such Borrower agrees promptly to return such refund (together with any interest with respect thereto due to the relevant taxing authority) (free of all Non-Excluded Taxes) to the Administrative such Agent or the applicable Lender, as the case may be, upon receipt of a notice that such refund is required to be repaid to the relevant taxing authority.
(gf) The obligations of a any Agent, Lender or Participant under this subsection 4.13 shall survive the termination of this Agreement and the payment of the Loans and all amounts payable hereunder.
Appears in 1 contract
Certain Rules Relating to the Payment of Additional Amounts. (a) Upon ----------------------------------------------------------- the request, and at the expense, of the Borrower, each Lender to which the Borrower is required to pay any additional amount pursuant to subsection 4.10 4.11 or 4.114.12, and any Participant in respect of whose participation such payment is required, shall reasonably afford the Borrower the opportunity to contest, 108 and reasonably cooperate with the Borrower in contesting, the imposition of any Non-Excluded Tax giving rise to such payment; provided that (i) such Lender -------- shall not be required to afford the Borrower the opportunity to so contest unless the Borrower shall have confirmed in writing to such Lender its obligation to pay such amounts pursuant to this Agreement and (ii) the Borrower shall reimburse such Lender for its reasonable attorneys’ ' and accountants’ ' fees and disbursements incurred in so cooperating with the Borrower in contesting the imposition of such Non-Excluded Tax; provided, however, that notwithstanding the foregoing no Lender shall be required to afford the Borrower the opportunity to contest, or cooperate with the Borrower in contesting, the imposition of any Non-Excluded Taxes, if such Lender in its sole discretion in good faith determines that to do so would have an adverse effect on it.
(b) If a Lender changes its applicable lending office (other than pursuant to paragraph (c) below) and the effect of such the change, as of the date of such the change, would be to cause the Borrower to become obligated to pay any additional amount under subsection 4.10 4.11 or 4.114.12, the Borrower shall not be obligated to pay such additional amount.
(c) If a condition or an event occurs which would, or would upon the passage of time or giving of notice, result in the payment of any additional amount to any Lender by the Borrower pursuant to subsection 4.10 4.11 or 4.114.12, such Lender shall promptly as soon as reasonably practicable thereafter notify the Borrower and the Administrative Agent and shall take such steps as may reasonably be available to it and acceptable to the Borrower to mitigate the effects of such condition or event (which shall include efforts to rebook the Loans held by such Lender at another lending office, or through another branch or an affiliate, of such Lender); provided that such Lender shall not be required to take any step -------- that, in its reasonable judgment, would be materially disadvantageous to its business or operations or would require it to incur additional costs (unless the Borrower agrees to reimburse such Lender for the all such reasonable incremental out-of-pocket costs thereofand actual additional costs).
(d) If (and for so long as) the Borrower shall become obligated to pay additional amounts pursuant to subsection 4.10 4.11 or 4.11 4.12 and any affected Lender shall not 109 have promptly taken the steps necessary to avoid the need for payments under subsection 4.10 4.11 or 4.114.12, the Borrower shall have the right, for so long as such obligation remainsupon payment in full of all amounts then due from it under subsections 4.11 and 4.12, (i) with the assistance of the Administrative Agent, to seek one or more substitute Lenders reasonably satisfactory to the Administrative Agent and the Borrower to purchase in accordance with the provisions of subsection 11.6(c) the affected Loan, in whole or in part, at an aggregate price no less than such Loan’s the principal amount of such Loan or part thereof being purchased plus accrued interest, and unpaid interest thereon to the date of purchase and all fees and other amounts owing to the affected Lender hereunder (or under the other Loan Documents) and accrued to the date of the purchase (but without payment to the affected Lender of any premium or penalty) and to assume the obligations of the affected obligations Lender under this AgreementAgreement and the other Loan Documents, or (ii) after the Borrower has made a good faith effort to seek a substitute Lender in accordance with clause (i) above and provided that no Default or Event of Default has occurred and is continuing, upon at least four three Business Days’ ' irrevocable notice to the Administrative AgentAgent and the affected Lender, to prepay terminate the entire Commitment of the affected Lender and to repay the affected Loan, together with accrued and unpaid interest thereon to date of repayment, any amounts payable under subsection 4.13 in whole connection with such repayment and all fees and other amounts accrued to the date of repayment and owing to the affected Lender hereunder (or in part, subject under the other Loan Documents) (but without payment to subsection 4.12, without the affected Lender of any premium or penalty). In the case of the substitution of a Lender, the Borrower, the Administrative Agent, the affected Lender, and any substitute Lender shall execute and deliver an appropriately completed Assignment and Acceptance pursuant to subsection 13.6(b11.6(c) to effect the assignment of rights to, and the assumption of obligations by, the substitute Lender; provided that any fees required to be paid by subsection 13.6(b) in connection with such assignment shall be paid by the Borrower or the substitute Lender. In the case of a prepayment of an affected Loan, the amount specified in the notice shall be due and payable on the date specified therein, together with any accrued interest to such date on the amount prepaid. In the case of each of the substitution of a Lender and of the prepayment of an affected Loan, the Borrower shall first pay the affected Lender any additional amounts owing under subsections 4.10 and 4.11 (as well as any commitment fees and other amounts then due and owing to such Lender, including, without limitation, any amounts under subsection 4.13) prior to such substitution or prepayment.
(e) For purposes Notwithstanding any other provision of subsections 4.10 and 4.11this Agreement, a change no Lender shall be entitled to receive any additional amounts pursuant to subsection 4.11 or 4.12 unless such Lender represents to the Borrower that, at the time of any request by such Lender that such amounts be paid, it is the policy or general practice of such Lender to demand such compensation for comparable costs or deductions, if any, in treatysimilar circumstances, lawif any, rule or regulation shall not include the ratification or entry into force under comparable provisions of (i) the protocol amending the income tax treaty between the Netherlands and the United States, signed October 15, 1995, and (ii) the income tax treaty between Italy and the United States, signed August 25, 1999other credit agreements for comparable customers.
(f) If the Administrative Agent or any Lender receives a refund directly attributable to taxes for which the Borrower has made additional payments pursuant to subsection 4.10(a) or 4.11(a), the Administrative Agent or such Lender, as the case may be, shall promptly pay such refund (together with any interest with respect thereto received from the relevant taxing authority) to the Borrower, provided, however, that the Borrower agrees promptly to return such refund (together with any interest with respect thereto due to the relevant taxing authority) (free of all Non-Excluded Taxes) to the Administrative Agent or the applicable Lender, as the case may be, upon receipt of a notice that such refund is required to be repaid to the relevant taxing authority.
(g) The obligations of the Borrower and a Lender or Participant under this subsection 4.13 4.14 shall survive the termination of this Agreement and the payment of the Loans Notes and all amounts payable hereunderpayable.
Appears in 1 contract
Sources: Credit Agreement (CDW Holding Corp)