Common use of Increased Cost and Reduced Return; Capital Adequacy Clause in Contracts

Increased Cost and Reduced Return; Capital Adequacy. (a) If the Lender determines that the introduction of or any change in or in the interpretation of any Law, or the Lender’s compliance therewith, shall: (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, the Lender (except (A) any reserve requirement contemplated by Section 3.06) and (B) the requirements of the Bank of England and the Financial Services Authority or the European Central Bank reflected in the Mandatory Cost, other than as set forth below) or the L/C Issuer; (ii) subject the Lender to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit or any Eurocurrency Rate Loan made by it, or change the basis of taxation of payments to the Lender or the L/C Issuer in respect thereof (except for (A) Taxes or Other Taxes (as to which Section 3.01 shall govern), and (B) changes in the rate or basis of imposition of any amount excluded from the definition of Taxes pursuant to Section 3.01(a)); (iii) result in the failure of the Mandatory Cost, as calculated hereunder, to represent the cost to the Lender of complying with the requirements of the Bank of England and/or the Financial Services Authority or the European Central Bank in relation to its making, funding or maintaining Eurocurrency Rate Loans; or (iv) impose on the Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurocurrency Rate Loans made by the Lender or any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to the Lender of making or maintaining any Eurocurrency Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to the Lender of participating in, issuing or maintaining any Letter of Credit, or to reduce the amount of any sum received or receivable by the Lender hereunder (whether of principal, interest or any other amount), then from time to time upon demand of the Lender, the Borrower shall pay to the Lender such additional amounts as will compensate the Lender for such increased cost or reduction. (b) If the Lender determines that the introduction of any Law regarding capital adequacy or any change therein or in the interpretation thereof, or compliance by the Lender (or its lending office) therewith, has the effect of reducing the rate of return on the capital of the Lender or any corporation controlling the Lender as a consequence of the Lender’s obligations hereunder (taking into consideration its policies with respect to capital adequacy and the Lender’s desired return on capital), then from time to time upon demand of the Lender, the Borrower shall pay to the Lender such additional amounts as will compensate the Lender for such reduction. (c) Any failure or delay on the part of the Lender to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of the Lender’s right to demand such compensation, provided that the Borrower shall not be required to compensate the Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that the Lender notifies the Borrower of the introduction of, change in, change in the interpretation of, or change in the Lender’s compliance with, the Law giving rise to such increased costs or reductions and of the Lender’s intention to claim compensation therefor (except that, if the introduction of, change in, change in the interpretation of, or change in the Lender’s compliance with such Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

Increased Cost and Reduced Return; Capital Adequacy. (a) If the Lender determines that the introduction of or any change in or in the interpretation of any Law, or the Lender’s compliance therewith, shall: (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, the Lender (except (A) any reserve requirement contemplated by Section 3.06) and (B) the requirements of the Bank of England and the Financial Services Authority or the European Central Bank reflected in the Mandatory Cost, other than as set forth below) or the L/C Issuer; (ii) subject the Lender to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit or any Eurocurrency Rate Loan made by it, or change the basis of taxation of payments to the Lender or the L/C Issuer in respect thereof (except for (A) Taxes or Other Taxes (as to which Section 3.01 shall govern), and (B) changes in the rate or basis of imposition of any amount excluded from the definition of Taxes pursuant to Section 3.01(a)); (iii) result in the failure of the Mandatory Cost, as calculated hereunder, to represent the cost to the Lender of complying with the requirements of the Bank of England and/or the Financial Services Authority or the European Central Bank in relation to its making, funding or maintaining Eurocurrency Rate Loans; or (iv) impose on the Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurocurrency Rate Loans made by the Lender or any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to the Lender of making or maintaining any Loan the interest on which is determined by reference to the Eurocurrency Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to the Lender of participating in, issuing or maintaining any Letter of Credit, or to reduce the amount of any sum received or receivable by the Lender hereunder (whether of principal, interest or any other amount), then from time to time upon demand of the Lender, the Borrower shall pay to the Lender such additional amounts as will compensate the Lender for such increased cost or reduction. (b) If the Lender determines that the introduction of any Law regarding capital adequacy or any change therein or in the interpretation thereof, or compliance by the Lender (or its lending office) therewith, has the effect of reducing the rate of return on the capital of the Lender or any corporation controlling the Lender as a consequence of the Lender’s obligations hereunder (taking into consideration its policies with respect to capital adequacy and the Lender’s desired return on capital), then from time to time upon demand of the Lender, the Borrower shall pay to the Lender such additional amounts as will compensate the Lender for such reduction. (c) Any failure or delay on the part of the Lender to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of the Lender’s right to demand such compensation, provided that the Borrower shall not be required to compensate the Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that the Lender notifies the Borrower of the introduction of, change in, change in the interpretation of, or change in the Lender’s compliance with, the Law giving rise to such increased costs or reductions and of the Lender’s intention to claim compensation therefor (except that, if the introduction of, change in, change in the interpretation of, or change in the Lender’s compliance with such Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

Increased Cost and Reduced Return; Capital Adequacy. (a) If the any Lender determines that as a result of the introduction of or any change in or in the interpretation of any Law, or the such Lender’s compliance therewith, shall: in any case occurring after the Closing Date, there shall be any increase in the cost to such Lender of agreeing to accept or accepting, funding or maintaining Bankers’ Acceptances, agreeing to make or making, funding or maintaining Eurocurrency Rate Loans or other Tranche 2 Loans or (as the case may be) issuing or participating in Letters of Credit, or a reduction in the amount received or receivable by such Lender in connection with any of the foregoing (excluding for purposes of this subsection (a) any such increased costs or reduction in amount resulting from (i) imposeTaxes or Other Taxes (as to which Section 3.01 shall govern), modify (ii) changes in the rates or deem applicable basis of taxation of overall net income or overall gross income by the United States, Canada or any reserveother foreign jurisdiction or any political subdivision of either thereof under the Laws of which such Lender is organized or has a Lending Office, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, the Lender (except (Aiii) any reserve requirement requirements contemplated by Section 3.063.04(c) and (Biv) the requirements of the Bank of England and the Financial Services Authority or the European Central Bank reflected in the Mandatory Cost, other than as set forth below) or the L/C Issuer; (ii) subject the Lender to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit or any Eurocurrency Rate Loan made by it), or change the basis of taxation of payments to the Lender or the L/C Issuer in respect thereof (except for (A) Taxes or Other Taxes (as to which Section 3.01 shall govern), and (B) changes in the rate or basis of imposition of any amount excluded from the definition of Taxes pursuant to Section 3.01(a)); (iii) result in the failure of the Mandatory Cost, as calculated hereunder, to does not represent the cost to the such Lender of complying with the requirements of the Bank of England and/or the Financial Services Authority or the European Central Bank in relation to its making, funding or maintaining of Eurocurrency Rate Loans; or (iv) impose on the Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurocurrency Rate Loans made by the Lender or any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to the Lender of making or maintaining any Eurocurrency Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to the Lender of participating in, issuing or maintaining any Letter of Credit, or to reduce the amount of any sum received or receivable by the Lender hereunder (whether of principal, interest or any other amount), then from time to time upon demand of such Lender (with a copy of such demand to the LenderApplicable Agent), the Borrower Company shall pay (or cause the applicable Designated Borrower to the pay) to such Lender such additional amounts as will compensate the such Lender for such increased cost or reductionreduction or, if applicable, the portion of such cost that is not represented by the Mandatory Cost. (b) If the any Lender determines that the introduction of any Law regarding capital adequacy or any change therein or in the interpretation thereof, or compliance by the such Lender (or its lending officeLending Office) therewith, has the effect of reducing the rate of return on the capital of the such Lender or any corporation controlling the such Lender as a consequence of the such Lender’s obligations hereunder (taking into consideration its policies with respect to capital adequacy and the such Lender’s desired return on capital), then from time to time upon demand of such Lender (with a copy of such demand to the LenderApplicable Agent), the Borrower Company shall pay (or cause the applicable Designated Borrower to the pay) to such Lender such additional amounts as will compensate the such Lender for such reduction. (c) Any failure The Company shall pay (or delay on cause the part of the applicable Designated Borrower to pay) to each Lender, (i) as long as such Lender to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of the Lender’s right to demand such compensation, provided that the Borrower shall not be required to compensate maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on the Lender pursuant unpaid principal amount of each Eurocurrency Rate Loan equal to the foregoing provisions actual costs of this Section for such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), and (ii) as long as such Lender shall be required to comply with any increased reserve ratio requirement or analogous requirement of any other central banking or financial regulatory authority imposed in respect of the funding or maintenance of the Tranche 1 Commitments, the Eurocurrency Rate Loans, the Tranche 2 Commitments or the Tranche 2 Loans, such additional costs incurred (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitment or reductions suffered more than nine months Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which in each case shall be due and payable on each date on which interest is payable on any such Loan, provided the Company shall have received at least 15 days’ prior notice (with a copy to the Applicable Agent) of such additional interest costs from such Lender. If a Lender fails to give notice 15 days prior to the date that the Lender notifies the Borrower of the introduction ofrelevant Interest Payment Date, change in, change in the interpretation of, such additional interest or change in the Lender’s compliance with, the Law giving rise to such increased costs or reductions and of the Lender’s intention to claim compensation therefor (except that, if the introduction of, change in, change in the interpretation of, or change in the Lender’s compliance with such Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period due and payable 15 days from receipt of retroactive effect thereof)such notice.