Reserve Requirement; Change in Circumstances. (i) Notwithstanding any other provision of this Agreement, if after the First Closing Date any change in applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall change the basis of taxation of payments to any holder of a Floating Rate Shelf Note which bears interest at the LIBOR Rate of the principal of or interest on any such Floating Rate Shelf Note or any fees, expenses or indemnities payable hereunder (other than changes in respect of franchise or other taxes imposed on the overall net income of such holder or any participant by the United States or the jurisdiction in which such holder or such participant has its principal office or by any political subdivision or taxing authority therein), or shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of or credit extended by any holder of Floating Rate Shelf Notes which bear interest at the LIBOR Rate or shall impose on such holder or the London interbank market any other condition affecting this Agreement or such Floating Rate Shelf Notes held by such holder and the result of any of the foregoing shall be to increase the cost to such holder of making or maintaining any loan at the LIBOR Rate or to reduce the amount of any payment received or receivable by such holder hereunder or under any of such Floating Rate Shelf Notes (whether of principal, interest or otherwise) by an amount reasonably deemed by such holder to be material, then, subject to Section 8.9(d) hereof, the Company will pay to such holder such additional amount or amounts as will compensate such holder for such additional costs incurred or reduction suffered. (ii) If any holder of a Floating Rate Shelf Note which bears interest at the LIBOR Rate shall have reasonably determined that the adoption after the date hereof of any law, rule, regulation, agreement or guideline regarding capital adequacy, or any change after the date hereof in any such law, rule, regulation, agreement or guideline (whether such law, rule, regulation, agreement or guideline has been adopted before or after the date hereof) or in the interpretation or administration thereof, or compliance by such holder with any request or directive regarding capital adequacy (whether or not having the force of law) of any Governmental Authority has or would have the effect of reducing the rate of return on such holder’s capital as a consequence of extending credit with respect to such Floating Rate Shelf Note to a level below that which such holder could have achieved but for such applicability, adoption, change or compliance (taking into consideration such holder’s policies with respect to capital adequacy) by an amount deemed by such holder to be material, then from time to time the Company agrees to pay to such holder, subject to Section 8.9(d) hereof and the foregoing provisions of this Section 8.8(c)(ii), such additional amount or amounts as will compensate such holder for any such reduction suffered. (iii) A holder of Floating Rate Shelf Notes shall deliver to the Company, promptly after it has made a determination that any of the circumstances specified in the foregoing clauses (i) or (ii) apply, a certificate setting forth (a) the amount or amounts necessary to compensate such holder as specified in clause (i) or (ii) above, which certificate shall be conclusive absent manifest error and (b) the Prime Rate that would be applicable to any such Floating Rate Shelf Notes if the Company converts such Floating Rate Shelf Notes from the LIBOR Rate to the Prime Rate pursuant to Section 8.9(d) hereof. Subject to Section 8.9(d) hereof and the foregoing provisions of this Section 8.9(c)(iii), the Company agrees to pay such holder the amount shown as due, referred to in clause (a) of this Section 8.9(c)(iii), on any such certificate within five (5) Business Days after its receipt of the same. (iv) Subject to Section 8.9(c)(v), failure or delay on the part of any holder of Floating Rate Shelf Notes to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital shall not constitute a waiver of such holder’s right to demand such compensation with respect to any period. The protection of this paragraph shall be available to any such holder regardless of any possible contention of the invalidity or inapplicability of the law, rule, regulation, agreement, guideline or other change or condition that shall have occurred or been imposed. (v) Notwithstanding the foregoing clauses (i) and (ii) of this Section 8.9(c) and subject to Section 8.9(d) hereof, the Company shall only be obligated to compensate a holder of Floating Rate Shelf Notes for any amount described in such clauses (i) or (ii) arising or accruing during (a) any time period commencing not more than three months prior to the date on which such holder shall have notified the Company that such holder proposes to demand such compensation and shall have identified to the Company the statute, regulation or other basis upon which the claimed compensation is or will be based and (b) any time or period during which, because of the retroactive application of the statute, regulation or other basis, such holder did not know that such amount would arise or accrue.
Appears in 1 contract
Samples: Master Shelf and Note Purchase Agreement (Brown & Brown Inc)
Reserve Requirement; Change in Circumstances. (i) Notwithstanding any other provision of this Agreement, if after the First Closing Date date of this Agreement any change in applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall change the basis of taxation of payments to any holder of a Floating Rate Shelf Note which bears interest at the LIBOR Rate of the principal of or interest on any such Floating Rate Shelf Note or any fees, expenses or indemnities payable hereunder (other than changes in respect of franchise or other taxes imposed on the overall net income of such holder or any participant by the United States or the jurisdiction in which such holder or such participant has its principal office or by any political subdivision or taxing authority therein), or shall impose, modify or deem applicable any reserve, special deposit or similar requirement requirements against assets of, deposits with or for the account of or credit extended by any holder of Floating Rate Shelf Notes which bear interest at the LIBOR Rate or shall impose on such holder or the London interbank market any other condition affecting this Agreement or such Floating Rate Shelf Notes held LIBOR Loans made by such holder and the result of any of the foregoing shall be to increase the cost to such holder of making or maintaining any loan at the LIBOR Rate Loan or to reduce the amount of any payment received or receivable by such holder hereunder or under any of such the Floating Rate Shelf Notes (whether of principal, interest or otherwise) by an amount reasonably deemed by such holder to be material, then, subject to Section 8.9(d) hereof, then the Company will agrees to pay to such holder in accordance with clause (iii) below such additional amount or amounts as will compensate such holder for such additional costs incurred or reduction suffered.
(ii) If any holder of a Floating Rate Shelf Note which bears interest at the LIBOR Rate shall have reasonably determined that the adoption after the date hereof of any law, rule, regulation, agreement or guideline regarding capital adequacy, or any change amendment or modification after the date hereof in to or of any such law, rule, regulation, agreement or guideline (whether such law, rule, regulation, agreement or guideline has had been originally adopted before or after the date hereof) or any change after the date hereof in the interpretation or administration of any such law, rule, regulation, agreement or guideline by any Governmental Authority charged with the interpretation or administration thereof, or compliance by such holder with any request request, guideline or directive regarding capital adequacy (whether or not having the force of law) regarding capital adequacy of any Governmental Authority or the National Association of Insurance Commissioners has or would have the effect of reducing the rate of return on such holder’s capital as a consequence of extending credit with respect to such Floating Rate Shelf Note the LIBOR Loans made pursuant hereto to a level below that which such holder could have achieved but for such applicability, adoption, change or compliance (taking into consideration such holder’s policies with respect to capital adequacy) by an amount deemed by such holder to be material, then from time to time the Company agrees to pay to such holder, subject to Section 8.9(d) hereof and the foregoing provisions of this Section 8.8(c)(ii), holder such additional amount or amounts as will compensate such holder for any such reduction suffered.
(iii) A certificate of any holder of Floating Rate Shelf Notes shall deliver to the Company, promptly after it has made a determination that any of the circumstances specified in the foregoing clauses (i) or (ii) apply, a certificate setting forth (a) the amount or amounts necessary to compensate such holder as specified in clause (i) or (ii) above, which certificate above shall be delivered to the Company and shall be conclusive absent manifest error and (b) the Prime Rate that would be applicable to any such Floating Rate Shelf Notes if the Company converts such Floating Rate Shelf Notes from the LIBOR Rate to the Prime Rate pursuant to Section 8.9(d) hereoferror. Subject to Section 8.9(d) hereof and the foregoing provisions of this Section 8.9(c)(iii), the The Company agrees to pay such holder the amount shown as due, referred to in clause (a) of this Section 8.9(c)(iii), due on any such certificate within five (5) Business Days after its receipt of the same and shall have the right to notify such holder in writing of the details of any alleged manifest error whereupon the Company and such holder shall in good faith endeavor to mutually resolve the same.
(iv) Subject to Section 8.9(c)(v), failure Failure or delay on the part of any holder of Floating Rate Shelf Notes to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital shall not constitute a waiver of such holder’s right to demand such compensation with respect to such period or any other period. The protection of this paragraph 2K(3) shall be available to any such holder regardless of any possible contention of the invalidity or inapplicability of the law, rule, regulation, agreement, guideline or other change or condition that shall have occurred or been imposed.
(v) Notwithstanding the foregoing clauses (i) and (ii) The provisions of this Section 8.9(cparagraph 2K(3) shall remain operative and subject to Section 8.9(d) hereofin full force and effect regardless of the occurrence of the expiration of the term of this Agreement, the Company shall only be obligated to compensate a consummation of the transactions contemplated hereby, the repayment of any of the Notes, the invalidity or unenforceability of any term or provision of this Agreement or any Note, or any investigation made by or on behalf of any holder of Floating Rate Shelf Notes for any amount described in such clauses (i) or (ii) arising or accruing during (a) any time period commencing not more than three months prior to the date on which such holder shall have notified the Company that such holder proposes to demand such compensation and shall have identified to the Company the statute, regulation or other basis upon which the claimed compensation is or will be based and (b) any time or period during which, because of the retroactive application of the statute, regulation or other basis, such holder did not know that such amount would arise or accrueNotes.
Appears in 1 contract
Samples: Private Shelf Agreement (Watsco Inc)
Reserve Requirement; Change in Circumstances. (ia) Notwithstanding any other provision of this Agreement, if after the First Closing Date date of this Agreement any change in applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall change the basis of taxation of payments to any holder of a Floating Rate Shelf Note which bears interest at Lender or the LIBOR Rate Swingline Bank or the Issuing Bank of the principal of or interest on any LIBOR Loan made by such Floating Rate Shelf Note Lender or any fees, expenses Fees or indemnities other amounts payable hereunder (other than changes in respect of franchise or other taxes imposed on the overall net income of such holder Lender or any participant the Swingline Bank or the Issuing Bank by the United States or the jurisdiction in which such holder Lender or such participant the Swingline Bank or the Issuing Bank has its principal office or by any political subdivision or taxing authority therein), or shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of or credit extended by any holder of Floating Rate Shelf Notes Lender or the Swingline Bank or the Issuing Bank (except only such reserve requirement which bear interest at is reflected in the Adjusted LIBOR Rate Rate) or shall impose on such holder Lender or the Swingline Bank or the Issuing Bank or the London interbank market (or other relevant interbank market) any other condition affecting this Agreement or such Floating Rate Shelf Notes held LIBOR Loans made by such holder Lender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such holder Lender or the Swingline Bank or the Issuing Bank of making or maintaining any loan at the LIBOR Rate Loan or of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any payment sum received or receivable by such holder Lender or the Swingline Bank or the Issuing Bank hereunder or under any of such Floating Rate Shelf Notes in respect thereof (whether of principal, interest or otherwise) by an amount reasonably deemed by such holder Lender or the Swingline Bank or the Issuing Bank to be material, then, subject to Section 8.9(d) hereof, then the Company will Borrower shall pay to such holder Lender or the Swingline Bank or the Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such holder Lender or the Swingline Bank or the Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered. There shall be no duplication of payments in respect of Indemnified Taxes and Other Taxes required to be made by this Section and by Section 4.05.
(iib) If any holder of a Floating Rate Shelf Note which bears interest at Lender or the LIBOR Rate Swingline Bank or the Issuing Bank shall have reasonably determined that the adoption after the date hereof of any law, rule, regulation, agreement or guideline regarding capital adequacy, adequacy or any change after the date hereof in any such law, rule, regulation, agreement or guideline (whether or not such law, rule, regulation, agreement or guideline has been adopted before or after the date hereofadopted) or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any lending office of such holder Lender) or the Swingline Bank or the Issuing Bank or any Lender's or the Swingline Bank's or the Issuing Bank's holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of any Governmental Authority has or would have the effect of reducing the rate of return on such holder’s Lender's or the Swingline Bank's or the Issuing Bank's capital or on the capital of such Lender's or the Swingline Bank's or the Issuing Bank's holding company, if any, as a consequence of extending credit with respect to this Agreement or the Loans made or participation in Letters of Credit purchased by such Floating Rate Shelf Note Lender pursuant hereto or the Letters of Credit issued by the Swingline Bank or the Issuing Bank pursuant hereto to a level below that which such holder Lender or the Swingline Bank or the Issuing Bank or such Lender's or the Swingline Bank's or the Issuing Bank's holding company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such holder’s Lender's or the Swingline Bank's or the Issuing Bank's policies and the policies of such Lender's or the Swingline Bank's or the Issuing Bank's holding company with respect to capital adequacy) by an amount deemed by such holder Lender or the Swingline Bank or the Issuing Bank to be material, then from time to time the Company agrees to Borrower shall pay to such holderLender or the Swingline Bank or the Issuing Bank, subject to Section 8.9(d) hereof and as the foregoing provisions of this Section 8.8(c)(ii)case 28 34 may be, such additional amount or amounts as will compensate such holder Lender or the Swingline Bank or the Issuing Bank or such Lender's or the Swingline Bank's or the Issuing Bank's holding company for any such reduction suffered.
(iiic) A holder certificate of Floating Rate Shelf Notes shall deliver to a Lender or the Company, promptly after it has made a determination that any of Swingline Bank or the circumstances specified in the foregoing clauses (i) or (ii) apply, a certificate Issuing Bank setting forth (a) the amount or amounts necessary to compensate such holder Lender or the Swingline Bank or the Issuing Bank or its holding company, as applicable, as specified in clause paragraph (ia) or (iib) above, which certificate above shall be delivered to the Borrower and shall (if the determination of such amount or amounts is made on a reasonable and nondiscriminatory basis) be conclusive absent manifest error and (b) the Prime Rate that would be applicable to any such Floating Rate Shelf Notes if the Company converts such Floating Rate Shelf Notes from the LIBOR Rate to the Prime Rate pursuant to Section 8.9(d) hereoferror. Subject to Section 8.9(d) hereof and the foregoing provisions of this Section 8.9(c)(iii), the Company agrees to The Borrower shall pay such holder Lender or the Swingline Bank or the Issuing Bank the amount shown as due, referred to in clause (a) of this Section 8.9(c)(iii), due on any such certificate delivered by it within five (5) Business Days 10 days after its receipt of the same.
(ivd) Subject to Section 8.9(c)(v), failure Failure or delay on the part of any holder of Floating Rate Shelf Notes Lender or the Swingline Bank or the Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital shall not constitute a waiver of such holder’s Lender's or the Swingline Bank or the Issuing Bank's right to demand such compensation; provided however that if any Lender or the Swingline Bank or the Issuing Bank demands such compensation with in respect of a period prior to any periodthe date on which written demand therefor is given to the Borrower, then the obligation of the Borrower to pay such compensation in respect of such period shall be limited to the three months prior to the giving of such written demand, plus (if such demand results from a retroactive change in the aforesaid law, regulation, interpretation, administration, or guideline) the period of such retroactivity; however, such limitation shall not apply in respect of the period from and after the giving of such written demand). The protection of this paragraph Section shall be available to any such holder each Lender and the Swingline Bank or the Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, rule, regulation, agreement, guideline or other change or condition that shall have occurred or been imposed.
(v) Notwithstanding the foregoing clauses (i) and (ii) of this Section 8.9(c) and subject to Section 8.9(d) hereof, the Company shall only be obligated to compensate a holder of Floating Rate Shelf Notes for any amount described in such clauses (i) or (ii) arising or accruing during (a) any time period commencing not more than three months prior to the date on which such holder shall have notified the Company that such holder proposes to demand such compensation and shall have identified to the Company the statute, regulation or other basis upon which the claimed compensation is or will be based and (b) any time or period during which, because of the retroactive application of the statute, regulation or other basis, such holder did not know that such amount would arise or accrue.
Appears in 1 contract
Samples: Credit Agreement (Movado Group Inc)
Reserve Requirement; Change in Circumstances. (ia) Notwithstanding any other provision of this Agreement, if after the First Closing Date date of this Agreement any change in applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall change the basis of taxation of payments to any holder of a Floating Rate Shelf Note which bears interest at Lender or the LIBOR Rate Swingline Bank or the Issuing Bank of the principal of or interest on any LIBOR Loan made by such Floating Rate Shelf Note Lender or any fees, expenses Fees or indemnities other amounts payable hereunder (other than changes in respect of franchise or other taxes imposed on the overall net income of such holder Lender or any participant the Swingline Bank or the Issuing Bank by the United States or the jurisdiction in which such holder Lender or such participant the Swingline Bank or the Issuing Bank has its principal office or by any political subdivision or taxing authority therein), or shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of or credit extended by any holder of Floating Rate Shelf Notes Lender or the Swingline Bank or the Issuing Bank (except only such reserve requirement which bear interest at is reflected in the Adjusted LIBOR Rate Rate) or shall impose on such holder Lender or the Swingline Bank or the Issuing Bank or the London interbank market (or other relevant interbank market) any other condition affecting this Agreement or such Floating Rate Shelf Notes held LIBOR Loans made by such holder Lender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such holder Lender or the Swingline Bank or the Issuing Bank of making or maintaining any loan at the LIBOR Rate Loan or of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any payment sum received or receivable by such holder Lender or the Swingline Bank or the Issuing Bank hereunder or under any of such Floating Rate Shelf Notes in respect thereof (whether of principal, interest or otherwise) by an amount reasonably deemed by such holder Lender or the Swingline Bank or the Issuing Bank to be material, then, subject to Section 8.9(d) hereof, then the Company will Parent or the applicable Foreign Subsidiary Borrower shall pay to such holder Lender or the Swingline Bank or the Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such holder Lender or the Swingline Bank or the Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered. There shall be no duplication of payments in respect of Indemnified Taxes and Other Taxes required to be made by this Section and by Section 4.5.
(iib) If any holder of a Floating Rate Shelf Note which bears interest at Lender or the LIBOR Rate Swingline Bank or the Issuing Bank shall have reasonably determined that the adoption after the date hereof of any law, rule, regulation, agreement or guideline regarding capital adequacy, adequacy or any change after the date hereof in any such law, rule, regulation, agreement or guideline regarding capital adequacy (whether or not such law, rule, regulation, agreement or guideline has been adopted before or after the date hereofadopted) or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any lending office of such holder Lender) or the Swingline Bank or the Issuing Bank or any Lender's or the Swingline Bank's or the Issuing Bank's holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of any Governmental Authority has or would have the effect of reducing the rate of return on such holder’s Lender's or the Swingline Bank's or the Issuing Bank's capital or on the capital of such Lender's or the Swingline Bank's or the Issuing Bank's holding company, if any, as a consequence of extending credit with respect to this Agreement or the Loans made or participation in Letters of Credit purchased by such Floating Rate Shelf Note Lender or by the Swingline Bank pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such holder Lender or the Swingline Bank or the Issuing Bank or such Lender's or the Swingline Bank's or the Issuing Bank's holding company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such holder’s Lender's or the Swingline Bank's or the Issuing Bank's policies and the policies of such Lender's or the Swingline Bank's or the Issuing Bank's holding company with respect to capital adequacy) by an amount deemed by such holder Lender or the Swingline Bank or the Issuing Bank to be material, then from time to time the Company agrees to Parent or the applicable Foreign Subsidiary Borrower shall pay to such holderLender or the Swingline Bank or the Issuing Bank, subject to Section 8.9(d) hereof and as the foregoing provisions of this Section 8.8(c)(ii)case may be, such additional amount or amounts as will compensate such holder Lender or the Swingline Bank or the Issuing Bank or such Lender's or the Swingline Bank's or the Issuing Bank's holding company for any such reduction suffered.
(iiic) A holder certificate of Floating Rate Shelf Notes shall deliver to a Lender or the Company, promptly after it has made a determination that any of Swingline Bank or the circumstances specified in the foregoing clauses (i) or (ii) apply, a certificate Issuing Bank setting forth (a) the amount or amounts necessary to compensate such holder Lender or the Swingline Bank or the Issuing Bank or its holding company, as applicable, as specified in clause paragraph (ia) or (iib) above, which certificate above shall be delivered to the Parent and shall (if the determination of such amount or amounts is made on a reasonable and nondiscriminatory basis) be conclusive absent manifest error and (b) error. The Parent or the Prime Rate that would be applicable to any such Floating Rate Shelf Notes if the Company converts such Floating Rate Shelf Notes from the LIBOR Rate to the Prime Rate pursuant to Section 8.9(d) hereof. Subject to Section 8.9(d) hereof and the foregoing provisions of this Section 8.9(c)(iii), the Company agrees to Foreign Subsidiary Borrower shall pay such holder Lender or the Swingline Bank or the Issuing Bank the amount shown as due, referred to in clause (a) of this Section 8.9(c)(iii), due on any such certificate delivered by it within five (5) Business Days 10 days after its receipt by the Parent of the same.
(ivd) Subject to Section 8.9(c)(v), failure Failure or delay on the part of any holder of Floating Rate Shelf Notes Lender or the Swingline Bank or the Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital shall not constitute a waiver of such holder’s Lender's or the Swingline Bank or the Issuing Bank's right to demand such compensation; provided however that if any Lender or the Swingline Bank or the Issuing Bank demands such compensation with in respect of a period prior to any periodthe date on which written demand therefor is given to the Parent, then the obligation of the Parent or the applicable Foreign 30 Subsidiary Borrower to pay such compensation in respect of such period shall be limited to the three months prior to the giving of such written demand, plus (if such demand results from a retroactive change in the aforesaid law, regulation, interpretation, administration, or guideline) the period of such retroactivity; however, such limitation shall not apply in respect of the period from and after the giving of such written demand. The protection of this paragraph Section shall be available to any such holder each Lender and the Swingline Bank or the Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, rule, regulation, agreement, guideline or other change or condition that shall have occurred or been imposed.
(v) Notwithstanding the foregoing clauses (i) and (ii) of this Section 8.9(c) and subject to Section 8.9(d) hereof, the Company shall only be obligated to compensate a holder of Floating Rate Shelf Notes for any amount described in such clauses (i) or (ii) arising or accruing during (a) any time period commencing not more than three months prior to the date on which such holder shall have notified the Company that such holder proposes to demand such compensation and shall have identified to the Company the statute, regulation or other basis upon which the claimed compensation is or will be based and (b) any time or period during which, because of the retroactive application of the statute, regulation or other basis, such holder did not know that such amount would arise or accrue.
Appears in 1 contract
Samples: Credit Agreement (Movado Group Inc)
Reserve Requirement; Change in Circumstances. (i) Notwithstanding any other provision of this Agreement, if after the First Closing Date date of this Agreement any change in applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall change the basis of taxation of payments to any holder of a Floating Rate Shelf Note which bears interest at the LIBOR Rate of the principal of or interest on any such Floating Rate Shelf Note or any fees, expenses or indemnities payable hereunder (other than changes in respect of franchise or other taxes imposed on the overall net income of such holder or any participant by the United States or the jurisdiction in which such holder or such participant has its principal office or by any political subdivision or taxing authority therein), or shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of or credit extended by any holder of Floating Rate Shelf Notes which bear interest at the LIBOR Rate or shall impose on such holder or the London interbank market any other condition affecting this Agreement or such Floating Rate Shelf Notes held by such holder and the result of any of the foregoing shall be to increase the cost to such holder of making or maintaining any loan at the LIBOR Rate or to reduce the amount of any payment received or receivable by such holder hereunder or under any of such the Floating Rate Shelf Notes (whether of principal, interest or otherwise) by an amount reasonably deemed by such holder to be material, then, subject to Section 8.9(dparagraph 2I(4) hereof, the Company Issuers will pay to such holder such additional amount or amounts as will compensate such holder for such additional costs incurred or reduction suffered.
(ii) If any holder of a Floating Rate Shelf Note which bears interest at the LIBOR Rate shall have reasonably determined that the adoption after the date hereof of any law, rule, regulation, agreement or guideline regarding capital adequacy, or any change after the date hereof in any such law, rule, regulation, agreement or guideline (whether such law, rule, regulation, agreement or guideline subject to such change has been adopted before or after the date hereof) or in the interpretation or administration thereof, or compliance by such holder with any request or directive regarding capital adequacy (whether or not having the force of law) of any Governmental Authority has or would have the effect of reducing the rate of return on such holder’s capital as a consequence of extending credit with respect to such a Floating Rate Shelf Note to a level below that which such holder could have achieved but for such applicability, adoption, change or compliance (taking into consideration such holder’s policies with respect to capital adequacy) by an amount reasonably deemed by such holder to be material, then from time to time the Company agrees Co-Issuers agree to pay to such holder, subject to Section 8.9(dparagraph 2I(4) hereof and the foregoing provisions of this Section 8.8(c)(iiparagraph 2I(3)(ii), such additional amount or amounts as will compensate such holder for any such reduction suffered.
(iii) A holder of Floating Rate Shelf Notes shall deliver to the CompanyCo-Issuers, promptly after it has made a determination that any of the circumstances specified in the foregoing clauses (i) or (ii) apply, a certificate setting forth (a) the amount or amounts necessary to compensate such holder as specified in clause (i) or (ii) above, which certificate shall be conclusive absent manifest error and error, (b) the Prime Rate that would be applicable to any such Floating Rate Shelf Notes if the Company converts Co-Issuers convert such Floating Rate Shelf Notes from the LIBOR Rate to the Prime Rate pursuant to Section 8.9(dparagraph 2I(4) hereof, and (c) the fixed rate of interest that would be applicable to any such Floating Rate Shelf Notes if the Co-Issuers convert such Floating Rate Shelf Notes from the LIBOR Rate to a fixed rate of interest pursuant to paragraph 2I(4) hereof. Subject to Section 8.9(dparagraph 2I(4) hereof and the foregoing provisions of this Section 8.9(c)(iiiparagraph 2I(3)(iii), the Company agrees Co-Issuers agree to pay such holder the amount shown as due, referred to in clause (a) of this Section 8.9(c)(iiiparagraph 2I(3)(iii), on any such certificate within five (5) Business Days after its receipt of the same.
(iv) Subject to Section 8.9(c)(vparagraph 2I(3)(v), failure or delay on the part of any holder of Floating Rate Shelf Notes to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital shall not constitute a waiver of such holder’s right to demand such compensation with respect to any period. The protection of this paragraph shall be available to any such holder regardless of any possible contention of the invalidity or inapplicability of the law, rule, regulation, agreement, guideline or other change or condition that shall have occurred or been imposed.
(v) Notwithstanding the foregoing clauses (i) and (ii) of this Section 8.9(cparagraph 2I(3) and subject to Section 8.9(dparagraph 2I(4) hereof, the Company Co-Issuers shall only be obligated to compensate a holder of Floating Rate Shelf Notes for any amount described in such clauses (i) or (ii) arising or accruing during (a) any time period commencing not more than three months prior to the date on which such holder shall have notified the Company Co-Issuers that such holder proposes to demand such compensation and shall have identified to the Company Co-Issuers the statute, regulation or other basis upon which the claimed compensation is or will be based and (b) any time or period during which, because of the retroactive application of the statute, regulation or other basis, such holder did not know that such amount would arise or accrue.
Appears in 1 contract
Samples: Note Purchase and Private Shelf Agreement (Drew Industries Inc)
Reserve Requirement; Change in Circumstances. (ia) Notwithstanding any other provision of this Agreement, if after the First Closing Date date of this Agreement any change in applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall change the basis of taxation of payments to any holder of a Floating Rate Shelf Note which bears interest at the LIBOR Rate Lender of the principal of or interest on any Loan made by such Floating Rate Shelf Note Lender or any fees, expenses Fees or indemnities other amounts payable hereunder (other than changes in respect of franchise or other taxes imposed on the overall net income of such holder or any participant Lender by the United States or the jurisdiction in which such holder or such participant Lender has its principal office or by any political subdivision or taxing authority therein), or shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of or credit extended by any holder of Floating Rate Shelf Notes which bear interest at the LIBOR Rate Lender or shall impose on such holder Lender or the London interbank market (or other relevant interbank market) any other condition affecting this Agreement or such Floating Rate Shelf Notes held Loans made by such holder Lender, and the result of any of the foregoing shall be to increase the cost to such holder Lender of making or maintaining any loan at the LIBOR Rate Loan or to reduce the amount of any payment sum received or receivable by such holder Lender hereunder or under any of such Floating Rate Shelf Notes in respect thereof (whether of principal, interest or otherwise) by an amount reasonably deemed by such holder Lender to be material, then, subject to Section 8.9(d) hereof, then the Company will applicable Borrower shall pay to such holder Lender upon demand such additional amount or amounts as will compensate such holder Lender for such additional costs incurred or reduction suffered. There shall be no duplication of payments in respect of Indemnified Taxes and Other Taxes required to be made by this Section and by Section 3.5.
(iib) If any holder of a Floating Rate Shelf Note which bears interest at the LIBOR Rate Lender shall have reasonably determined that the adoption after the date hereof of any law, rule, regulation, agreement or guideline regarding capital adequacy, adequacy or any change after the date hereof in any such law, rule, regulation, agreement or guideline regarding capital adequacy (whether or not such law, rule, regulation, agreement or guideline has been adopted before or after the date hereofadopted) or in the interpretation or administration thereof, or compliance by such holder with any request or directive regarding capital adequacy (whether or not having the force of law) of any Governmental Authority has or would have the effect of reducing the rate of return on such holder’s capital as a consequence of extending credit with respect to such Floating Rate Shelf Note to a level below that which such holder could have achieved but for such applicability, adoption, change or compliance (taking into consideration such holder’s policies with respect to capital adequacy) by an amount deemed by such holder to be material, then from time to time the Company agrees to pay to such holder, subject to Section 8.9(d) hereof and the foregoing provisions of this Section 8.8(c)(ii), such additional amount or amounts as will compensate such holder for any such reduction suffered.
(iii) A holder of Floating Rate Shelf Notes shall deliver to the Company, promptly after it has made a determination that any of the circumstances specified in the foregoing clauses (i) or (ii) apply, a certificate setting forth (a) the amount or amounts necessary to compensate such holder as specified in clause (i) or (ii) above, which certificate shall be conclusive absent manifest error and (b) the Prime Rate that would be applicable to any such Floating Rate Shelf Notes if the Company converts such Floating Rate Shelf Notes from the LIBOR Rate to the Prime Rate pursuant to Section 8.9(d) hereof. Subject to Section 8.9(d) hereof and the foregoing provisions of this Section 8.9(c)(iii), the Company agrees to pay such holder the amount shown as due, referred to in clause (a) of this Section 8.9(c)(iii), on any such certificate within five (5) Business Days after its receipt of the same.
(iv) Subject to Section 8.9(c)(v), failure or delay on the part of any holder of Floating Rate Shelf Notes to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital shall not constitute a waiver of such holder’s right to demand such compensation with respect to any period. The protection of this paragraph shall be available to any such holder regardless of any possible contention of the invalidity or inapplicability of the law, rule, regulation, agreement, guideline or other change or condition that shall have occurred or been imposed.
(v) Notwithstanding the foregoing clauses (i) and (ii) of this Section 8.9(c) and subject to Section 8.9(d) hereof, the Company shall only be obligated to compensate a holder of Floating Rate Shelf Notes for any amount described in such clauses (i) or (ii) arising or accruing during (a) any time period commencing not more than three months prior to the date on which such holder shall have notified the Company that such holder proposes to demand such compensation and shall have identified to the Company the statute, regulation or other basis upon which the claimed compensation is or will be based and (b) any time or period during which, because of the retroactive application of the statute, regulation or other basis, such holder did not know that such amount would arise or accrue.or
Appears in 1 contract
Samples: Credit Agreement (Movado Group Inc)
Reserve Requirement; Change in Circumstances. (ia) Notwithstanding any other provision of this Agreement, if after the First Closing Date date of this Agreement any change in applicable law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) shall change the basis of taxation of payments to any holder of a Floating Rate Shelf Note which bears interest at Lender or the LIBOR Rate Swingline Bank or the Issuing Bank of the principal of or interest on any LIBOR Loan made by such Floating Rate Shelf Note Lender or any fees, expenses Fees or indemnities other amounts payable hereunder (other than changes in respect of franchise or other taxes imposed on the overall net income of such holder Lender or any participant the Swingline Bank or the Issuing Bank by the United States or the jurisdiction in which such holder Lender or such participant the Swingline Bank or the Issuing Bank has its principal office or by any political subdivision or taxing authority therein), or shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of or credit extended by any holder of Floating Rate Shelf Notes Lender or the Swingline Bank or the Issuing Bank (except only such reserve requirement which bear interest at is reflected in the LIBOR Rate Adjusted LIBO Rate) or shall impose on such holder Lender or the Swingline Bank or the Issuing Bank or the London interbank market (or other relevant interbank market) any other condition affecting this Agreement or such Floating Rate Shelf Notes held LIBOR Loans made by such holder Lender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such holder Lender or the Swingline Bank or the Issuing Bank of making or maintaining any loan at the LIBOR Rate Loan or of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any payment sum received or receivable by such holder Lender or the Swingline Bank or the Issuing Bank hereunder or under any of such Floating Rate Shelf Notes in respect thereof (whether of principal, interest or otherwise) by an amount reasonably deemed by such holder Lender or the Swingline Bank or the Issuing Bank to be material, then, subject to Section 8.9(d) hereof, then the Company will Parent or the applicable Foreign Subsidiary Borrower shall pay to such holder Lender or the Swingline Bank or the Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such holder Lender or the Swingline Bank or the Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered. There shall be no duplication of payments in respect of Indemnified Taxes and Other Taxes required to be made by this Section and by Section 4.5.
(iib) If any holder of a Floating Rate Shelf Note which bears interest at Lender or the LIBOR Rate Swingline Bank or the Issuing Bank shall have reasonably determined that the adoption after the date hereof of any law, rule, regulation, agreement or guideline regarding capital adequacy, adequacy or any change after the date hereof in any such law, rule, regulation, agreement or guideline regarding capital adequacy (whether or not such law, rule, regulation, agreement or guideline has been adopted before or after the date hereofadopted) or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender (or any lending office of such holder Lender) or the Swingline Bank or the Issuing Bank or any Lender's or the Swingline Bank's or the Issuing Bank's holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of any Governmental Authority has or would have the effect of reducing the rate of return on such holder’s Lender's or the Swingline Bank's or the Issuing Bank's capital or on the capital of such Lender's or the Swingline Bank's or the Issuing Bank's holding company, if any, as a consequence of extending credit with respect to this Agreement or the Loans made or participation in Letters of Credit purchased by such Floating Rate Shelf Note Lender or by the Swingline Bank pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such holder Lender or the Swingline Bank or the Issuing Bank or such Lender's or the Swingline Bank's or the Issuing Bank's holding company could have achieved but for such applicability, adoption, change or compliance (taking into consideration such holder’s Lender's or the Swingline Bank's or the Issuing Bank's policies and the policies of such Lender's or the Swingline Bank's or the Issuing Bank's holding company with respect to capital adequacy) by an amount deemed by such holder Lender or the Swingline Bank or the Issuing Bank to be material, then from time to time the Company agrees to Parent or the applicable Foreign Subsidiary Borrower shall pay to such holderLender or the Swingline Bank or the Issuing Bank, subject to Section 8.9(d) hereof and as the foregoing provisions of this Section 8.8(c)(ii)case may be, such additional amount or amounts as will compensate such holder Lender or the Swingline Bank or the Issuing Bank or such Lender's or the Swingline Bank's or the Issuing Bank's holding company for any such reduction suffered.
(iiic) A holder certificate of Floating Rate Shelf Notes shall deliver to a Lender or the Company, promptly after it has made a determination that any of Swingline Bank or the circumstances specified in the foregoing clauses (i) or (ii) apply, a certificate Issuing Bank setting forth (a) the amount or amounts necessary to compensate such holder Lender or the Swingline Bank or the Issuing Bank or its holding company, as applicable, as specified in clause paragraph (ia) or (iib) above, which certificate above shall be delivered to the Parent and shall (if the determination of such amount or amounts is made on a reasonable and nondiscriminatory basis) be conclusive absent manifest error and (b) error. The Parent or the Prime Rate that would be applicable to any such Floating Rate Shelf Notes if the Company converts such Floating Rate Shelf Notes from the LIBOR Rate to the Prime Rate pursuant to Section 8.9(d) hereof. Subject to Section 8.9(d) hereof and the foregoing provisions of this Section 8.9(c)(iii), the Company agrees to Foreign Subsidiary Borrower shall pay such holder Lender or the Swingline Bank or the Issuing Bank the amount shown as due, referred to in clause (a) of this Section 8.9(c)(iii), due on any such certificate delivered by it within five (5) Business Days 10 days after its receipt by the Parent of the same.
(ivd) Subject to Section 8.9(c)(v), failure Failure or delay on the part of any holder of Floating Rate Shelf Notes Lender or the Swingline Bank or the Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital shall not constitute a waiver of such holder’s Lender's or the Swingline Bank or the Issuing Bank's right to demand such compensation; provided, however, that if any Lender or the Swingline Bank or the Issuing Bank demands such compensation with in respect of a period prior to any periodthe date on which written demand therefor is given to the Parent, then the obligation of the Parent or the applicable Foreign Subsidiary Borrower to pay such compensation in respect of such period shall be limited to the three months prior to the giving of such written demand, plus (if such demand results from a retroactive change in the aforesaid law, regulation, interpretation, administration, or guideline) the period of such retroactivity; however, such limitation shall not apply in respect of the period from and after the giving of such written demand. The protection of this paragraph Section shall be available to any such holder each Lender and the Swingline Bank or the Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the law, rule, regulation, agreement, guideline or other change or condition that shall have occurred or been imposed.
(v) Notwithstanding the foregoing clauses (i) and (ii) of this Section 8.9(c) and subject to Section 8.9(d) hereof, the Company shall only be obligated to compensate a holder of Floating Rate Shelf Notes for any amount described in such clauses (i) or (ii) arising or accruing during (a) any time period commencing not more than three months prior to the date on which such holder shall have notified the Company that such holder proposes to demand such compensation and shall have identified to the Company the statute, regulation or other basis upon which the claimed compensation is or will be based and (b) any time or period during which, because of the retroactive application of the statute, regulation or other basis, such holder did not know that such amount would arise or accrue.
Appears in 1 contract
Samples: Credit Agreement (Movado Group Inc)
