Certain Rules Relating to the Payment of Additional Amounts. (a) Upon the request, and at the expense, of the Borrower, the Lender in respect of any additional amount is required to be paid pursuant to subsection 3.10 or 3.11, 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) the Lender shall not be required to afford the Borrower the opportunity to so contest unless the Borrower shall have confirmed in writing to the Lender its obligation to pay such amounts pursuant to this Agreement and (ii) the Borrower shall reimburse the 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 the Lender in its sole discretion in good faith determines that to do so would have an adverse effect on it. (b) If the Lender changes its applicable lending office (other than (i) pursuant to paragraph (c) below or (ii) after an Event of Default under subsection 8.1(a) or 8.1(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 3.10 or 3.11, 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 the Lender pursuant to subsection 3.10 or 3.11, as the case may be, the Lender shall promptly after becoming aware of such event or condition notify the Borrower 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 the Lender at another lending office, or through another branch or an affiliate, of the Lender); provided that the 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 the Lender for the reasonable incremental out-of-pocket costs thereof). (d) [reserved]. (e) If the Lender receives a refund directly attributable to Taxes for which the Borrower have made additional payments pursuant to subsection 3.10(a) or 3.11(a), the Lender 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 Lender upon receipt of a notice that such refund is required to be repaid to the relevant taxing authority. Notwithstanding anything to the contrary in this subparagraph (e), in no event shall any person be required to pay more than the after-tax amount of the refund it received. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that is deemed confidential) to the indemnifying party or any other Person. (f) The obligations of the Lender or Participant under this subsection 3.13 shall survive the termination of this Agreement and the payment of the Term 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 any Borrower, the each Section 9.15 Lender in respect of to which such Borrower is required to pay any additional amount is required to be paid pursuant to subsection 3.10 9.14 or 3.119.15, and any Participant in respect of whose participation such payment is required, shall reasonably afford such Borrower or the Borrower German Term Loan Servicing Bank on behalf of the German Term Loan Lenders 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) the such Section 9.15 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 the such Section 9.15 Lender its obligation to pay such amounts pursuant to this Agreement and (ii) the such Borrower shall reimburse the such Section 9.15 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 Borrower the opportunity to contest, or cooperate with the Borrower in contesting, the imposition of any Non-Excluded Taxes, if the Lender in its sole discretion in good faith determines that to do so would have an adverse effect on it.
(b) If the a Section 9.15 Lender changes its applicable lending office (other than (i) pursuant to paragraph (c) below or (ii) after an Event of Default under subsection 8.1(a) or 8.1(f) has occurred and is continuingbelow) and the effect of such the change, as of the date of such the change, would be to cause the any Borrower to become obligated to pay any additional amount under subsection 3.10 9.14 or 3.119.15, 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 Section 9.15 Lender by any Borrower or by the Lender German Term Loan Servicing Bank on behalf of the German Term Loan Lenders pursuant to subsection 3.10 9.14 or 3.119.15, as or which results in interests payments in respect of the case may beGerman Term Loans becoming non-deductible (without regard to any debt-equity safe harbor) for German income tax purposes, the such Section 9.15 Lender shall promptly after becoming aware of such event or condition notify the Borrower and shall take such steps as may reasonably be available to it and acceptable to the Primary Borrower to mitigate the effects of such condition or event (which shall include efforts to rebook the Term Loans held by the such Section 9.15 Lender at another lending office, or through another branch or an affiliate, of the such Section 9.15 Lender); provided that the such Section 9.15 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 that would be required to pay such additional amounts agrees to reimburse the such Lender for the reasonable incremental out-of-pocket costs thereof). If a condition or 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 Borrower pursuant to subsection 9.14(a)(i) (i.e. increased costs for taxes) such Lender shall promptly notify the Primary Borrower and the Administrative Agent; provided that a failure on the part of a Lender to notify the Primary Borrower shall not result in any liability to such Lender and shall not reduce the amount of any additional amounts payable hereunder to such Lender to the extent that such failure to notify the Primary Borrower does not result in the payment of any additional amount by any Borrower pursuant to subsection 9.14(a)(i) which payment could have been avoided or reduced had the Lender notified the Primary Borrower in accordance with this subsection 9.18(c).
(d) [reserved]If any Borrower or the German Term Loan Servicing Bank on behalf of the German Term Loan Lenders shall become obligated to pay additional amounts pursuant to subsection 9.14 or 9.15 and any affected Lender shall not have promptly taken steps necessary to avoid the need for payments under subsection 9.14 or 9.15, the Primary Borrower shall have the right, for so long as such obligation remains, (x) with the assistance of the Administrative Agent, to seek one or more substitute Lenders reasonably satisfactory to the Administrative Agent and the Primary 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 (y) to the extent that no Default or Event of Default under subsection 15.2(a) or subsection 15.2(c) (with respect to violations of covenants in Section 13) shall have occurred of which the Primary Borrower has actual knowledge and is then continuing, 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 9.16, without premium or penalty. In the case of the substitution of a Lender, the Primary Borrower, the Administrative Agent, the affected Lender, and any substitute Lender shall execute and deliver an appropriately completed Assignment and Acceptance pursuant to subsection 17.6(c) to effect the assignment of rights to, and the assumption of obligations by, 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 Primary Borrower shall first pay the affected Lender any additional amounts owing under subsections 9.14, 9.15 and 9.16 (as well as any commitment fees and other amounts then due and owing to such Lender) prior to such substitution or prepayment.
(e) If the Administrative Agent or any Section 9.15 Lender receives a refund directly attributable to Taxes in respect of taxes for which the any Borrower have has made additional payments pursuant to subsection 3.10(a9.14(a) or 3.11(a9.15(a), the Lender Administrative Agent or such Section 9.15 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 Lender 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. Notwithstanding anything to the contrary contained in this subparagraph clause (e), in no event Lender shall have any person be required obligation to pay more than the after-disclose to any Borrower any of such Lender's books, records or tax amount of the refund it received. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that is deemed confidential) to the indemnifying party or any other Personfilings.
(f) For the purposes of subsections 9.14 and 9.15, a change in treaty, law, rule or regulation shall not include (i) the ratification or entry into force of the income tax treaty between Luxembourg and the United States of America or (ii) the new United States withholding regulations (Treasury Decision 8734, Treasury Decision 8804, Treasury Decision 8856 and Treasury Decision 8881) which become effective on January 1, 2001.
(g) The obligations of the Administrative Agent and each Section 9.15 Lender or Participant under this subsection 3.13 9.18 shall survive the termination of this Agreement and the payment of the Term Loans and all amounts payable hereunder.
Appears in 1 contract
Sources: Credit Agreement (Dynatech Corp)
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 Lender in respect of Borrower is required to pay any additional amount is required to be paid pursuant to subsection 3.10 or 3.11Section 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) the 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 the such Lender or Agent its obligation to pay such amounts pursuant to this Agreement and (ii) the Borrower shall reimburse the 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 the 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 the a Lender changes its applicable lending office (other than (i) pursuant to paragraph clause (c) below or (ii) after an Event of Default under subsection 8.1(aSection 9.1(a) or 8.1(f(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 3.10 Section 4.10 or 3.114.11, 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 Lender Borrower pursuant to subsection 3.10 Section 4.10 or 3.114.11 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, the pursuant to Section 4.9, such Lender or Agent 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 Term Loans held by the such Lender at another lending office, or through another branch or an affiliate, of the such Lender); provided that the 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 the such Lender or Agent for the reasonable incremental out-of-pocket costs thereof).
(d) [reserved]If the Borrower shall become obligated to pay additional amounts pursuant to Section 4.10 or 4.11 and any affected Lender shall not have promptly taken steps necessary to avoid the need for payments under Section 4.10 or 4.11 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 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 notice to the Administrative Agent to prepay the affected Term Loan, in whole or in part, subject to 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 Section 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 Section 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 Sections 4.10 and 4.11 (as well as any commitment fees and other amounts then due and owing to such Lender, including any amounts under 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) If the any Agent or any Lender receives a refund directly attributable to Taxes for which the Borrower have has made additional payments pursuant to subsection 3.10(a) or 3.11(aSection 4.11(a), such Agent or such Lender, as the Lender 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 such Agent or the Lender 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. Notwithstanding anything to the contrary in this subparagraph (e), in no event shall any person be required to pay more than the after-tax amount of the refund it received. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that is deemed confidential) to the indemnifying party or any other Person.
(f) The obligations of the any Agent, Lender or Participant under this subsection 3.13 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
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 Lender in respect of Borrower is required to pay any additional amount is required to be paid pursuant to subsection 3.10 or 3.11, 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) the 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 the such Agent or Lender its obligation to pay such amounts pursuant to this Agreement and (ii) the Borrower shall reimburse the 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. 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 the 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 the a Lender changes its applicable lending office (other than (i) pursuant to paragraph (c) below or (ii) after an Event of Default under subsection 8.1(a8(a) or 8.1(f(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 3.10 or 3.11, 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 Lender Borrower pursuant to subsection 3.10 or 3.11, as the case may be, the 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 Term Loans Loans, as the case may be, held by the such Lender at another lending office, or through another branch or an affiliate, of the such Lender); provided that the 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 the such Lender for the reasonable incremental out-of-pocket costs thereof).
(d) [reserved]If the Borrower shall become obligated to pay additional amounts pursuant to subsection 3.10 or 3.11 and any affected Lender shall not have promptly taken steps necessary to avoid the need for payments under subsection 3.10 or 3.11, 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) 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 Loan, in whole or in part, subject to subsection 3.12, 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 10.6(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 10.6(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 3.10 and 3.11 (as well as any commitment fees and other amounts then due and owing to such Lender, including any amounts under subsection 3.13) prior to such substitution or prepayment.
(e) If the any Agent or Lender receives a refund directly attributable to Taxes taxes for which the Borrower have has made additional payments pursuant to subsection 3.10(a) or 3.11(a), such Agent or such Lender, as the Lender 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-Non- Excluded Taxes) to such Agent or the Lender 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. Notwithstanding anything to the contrary in this subparagraph (e), in no event shall any person be required to pay more than the after-tax amount of the refund it received. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that is deemed confidential) to the indemnifying party or any other Person.
(f) The obligations of the any Agent, Lender or Participant under this subsection 3.13 shall survive the termination of this Agreement and the payment of the Term Loans and all other 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 BorrowerBorrower Representative, the each Lender in respect of and Agent to which any Borrower is required to pay any additional amount is required to be paid pursuant to subsection 3.10 Subsection 4.10 or 3.114.11, and any Participant in respect of whose participation such payment is required, shall reasonably afford the Borrower Representative the opportunity to contest, and reasonably cooperate with the Borrower Representative in contesting, the imposition of any Non-Excluded Tax giving rise to such payment; provided that (i) the such Lender or Agent shall not be required to afford the Borrower Representative the opportunity to so contest unless the Borrower Representative shall have confirmed in writing to the such Lender its or Agent such Borrower’s obligation to pay such amounts pursuant to this Agreement and (ii) the Borrower Borrowers shall reimburse the such Lender or Agent for its reasonable attorneys’ and accountants’ fees and disbursements incurred in so cooperating with the Borrower Representative 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 Representative the opportunity to contest, or cooperate with the Borrower Representative in contesting, the imposition of any Non-Excluded Taxes, if the 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 the a Lender changes its applicable lending office (other than (i) pursuant to paragraph clause (c) below or (ii) after an Event of Default under subsection 8.1(aSubsection 9.1(a) or 8.1(f9.1(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 3.10 Subsection 4.10 or 3.114.11, 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 or Agent by any of the Lender Borrowers pursuant to subsection 3.10 Subsection 4.10 or 3.114.11 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, the pursuant to Subsection 4.9, such Lender or Agent shall promptly after becoming aware of such event or condition notify the Borrower Representative 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 the such Lender at another lending office, or through another branch or an affiliate, of the such Lender); provided that the 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 Borrowers agree to reimburse the such Lender or Agent for the reasonable incremental out-of-pocket costs thereof).
(d) [reserved]If any of the 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 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 Representative 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 Representative 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) so long as no Event of Default under Subsection 9.1(a) or 9.1(f) then exists or will exist immediately after giving effect to the respective prepayment, upon notice to the Administrative Agent to prepay the affected Loan, in whole or in part, subject to Subsection 4.12, without premium or penalty and terminate the Commitments in respect of the Revolving Credit Facility of such Lender. In the case of the substitution of a Lender, then, the Borrower Representative, any other applicable Borrower, the Administrative Agent, the affected Lender, and any substitute Lender shall execute and deliver an appropriately completed Assignment and Acceptance pursuant to Subsection 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 11.6(b) in connection with such assignment shall be paid by the Borrower Representative 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 any amounts under 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) or Subsection 4.15(c)(i), 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 participations so assigned shall be paid in full by the assignee Lender and/or the Borrower Representative 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 applicable 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) If the any Agent or any Lender receives a refund directly attributable to Taxes for which any of the Borrower have Borrowers has made additional payments pursuant to subsection 3.10(a) or 3.11(aSubsection 4.11(a), such Agent or such Lender, as the Lender 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 such Agent or the Lender 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. Notwithstanding anything to the contrary in this subparagraph (e), in no event shall any person be required to pay more than the after-tax amount of the refund it received. This paragraph shall not be construed to require any indemnified party Agent or Lender to make available its Tax returns (or any other information relating to its Taxes that is deemed confidentialrelated work papers and advice prepared by outside advisors) to the indemnifying party any Borrower or to any other Person.
(f) The obligations of the any Agent, Lender or Participant under this subsection 3.13 Subsection 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: Credit Agreement (CHC Group Ltd.)
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 Lender in respect of Borrower is required to pay any additional amount is required to be paid pursuant to subsection 3.10 or 3.11Section 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) the 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 the such Lender or Agent its obligation to pay such amounts pursuant to this Agreement and (ii) the Borrower shall reimburse the 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 the 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 the a Lender changes its applicable lending office (other than (i) pursuant to paragraph clause (c) below or (ii) after an Event of Default under subsection 8.1(aSection 9.1(a) or 8.1(f(f) has occurred and is continuing) and the effect of such change, as of the date of such change, would be to cause the 10023685561003003016v52 #8894688589588927v75 Borrower to become obligated to pay any additional amount under subsection 3.10 Section 4.10 or 3.114.11, 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 Lender Borrower pursuant to subsection 3.10 Section 4.10 or 3.114.11 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, the pursuant to Section 4.9, such Lender or Agent 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 Term Loans held by the such Lender at another lending office, or through another branch or an affiliate, of the such Lender); provided that the 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 the such Lender or Agent for the reasonable incremental out-of-pocket costs thereof).
(d) [reserved]If the Borrower shall become obligated to pay additional amounts pursuant to Section 4.10 or 4.11 and any affected Lender shall not have promptly taken steps necessary to avoid the need for payments under Section 4.10 or 4.11 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 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 notice to the Administrative Agent to prepay the affected Term Loan, in whole or in part, subject to 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 Section 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 Section 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 Sections 4.10 and 4.11 (as well as any commitment fees and other amounts then due and owing to such Lender, including any amounts under 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 10023685561003003016v52 #8894688589588927v75 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) If the any Agent or any Lender receives a refund directly attributable to Taxes for which the Borrower have has made additional payments pursuant to subsection 3.10(a) or 3.11(aSection 4.11(a), such Agent or such Lender, as the Lender 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 such Agent or the Lender 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. Notwithstanding anything to the contrary in this subparagraph (e), in no event shall any person be required to pay more than the after-tax amount of the refund it received. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that is deemed confidential) to the indemnifying party or any other Person.
(f) The obligations of the any Agent, Lender or Participant under this subsection 3.13 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.)