Increased Costs Capital Adequacy. (a) If, on or after the date of this Agreement, the adoption of any law or regulation, or any change therein, or any change in the interpretation or administration thereof by any court, administrative or governmental authority, central bank or comparable agency charged with the interpretation or administration thereof or compliance by any Liquidity Bank with any request or directive issued after the date hereof (whether or not having the force of law) of any such authority, central bank or comparable agency shall either: (i) impose, modify or deem applicable any reserve, special deposit or similar requirement against (or against any class of, a change in or in the amount of) assets or liabilities of, or commitments or extensions of credit by, any Liquidity Bank; (ii) shall subject any Liquidity Bank to any tax of any kind with respect to this Agreement, the Liquidity Loan Notes or any Liquidity Loan made by it, or change the basis of taxation of payments to such Liquidity Bank in respect thereof (except for changes in the rate or the basis of tax on the overall net income of such Liquidity Bank); or (iii) impose on any Liquidity Bank any other condition regarding this Agreement or its Liquidity Commitment, and the result of any event referred to in clause (i)-(iii) above shall be to increase the cost to any Liquidity Bank of issuing or maintaining its Liquidity Commitment or its LIBOR Liquidity Loans or to reduce the amounts receivable by any Liquidity Bank hereunder (which increase in cost or reduction in amounts receivable shall be the result of any Liquidity Bank's reasonable allocation of the aggregate of such cost increase or reductions resulting from such events), then, upon written demand by any Liquidity Bank, BAFC shall, within ten (10) Business Days of receipt of such demand, be obligated to pay to such Liquidity Bank, from time to time as specified by such Liquidity Bank, additional amounts which in the aggregate shall be sufficient to compensate such Liquidity Bank for such increased cost or reduction, together with interest on each such amount from the date demanded until payment in full thereof at a rate per annum equal to the lesser of (A) the Legal Rate or (B) ABR. A certificate setting forth in reasonable detail such increased cost incurred or reduction in amounts receivable by any Liquidity Bank as a result of any event mentioned in clause (i), (ii) or (iii) of this subsection, submitted by any Liquidity Bank to BAFC, shall, unless otherwise required by law, be conclusive, absent manifest error, as to the amount thereof. Each Liquidity Bank shall give BAFC and the Administrative Agent notice, within a reasonable period of time of such Liquidity Bank having actual knowledge of the occurrence of any event that will entitle such Liquidity Bank to claim the payment of additional amounts under this SUBSECTION 4.05(A). Notwithstanding the foregoing, BAFC shall not be required to pay any Liquidity Bank, as applicable, such additional amounts to the extent such amounts relate to periods prior to one hundred and twenty (120) days of BAFC's receipt of such demand; PROVIDED that, if such change in law giving rise to such increased cost or reduction is retroactive, then the one hundred and twenty (120) day period shall be extended to include the period of retroactive effect thereof. (b) If any of the events requiring payments of additional amounts by BAFC under subsection (a) occurs, each Liquidity Bank shall take such steps as may be reasonable to avoid BAFC being required to pay any additional amounts and shall consult with BAFC in good faith with a view to agreeing to alternative arrangements which would not subject such Liquidity Bank to any unreimbursed cost and would not otherwise be disadvantageous to such Liquidity Bank, whereby any such requirement can be avoided or mitigated, including without limitation, fulfilling any such Liquidity Bank's obligations through another branch or affiliate. (c) If any Liquidity Bank shall have determined that on or after the date hereof, the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Liquidity Bank or any corporation controlling such Liquidity Bank with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the capital of such Liquidity Bank or such corporation as a consequence of the Liquidity Commitment or its obligations hereunder or under any participation agreement to a level below that which such Liquidity Bank or such corporation could have achieved but for such adoption, change or compliance (taking into consideration the policies of such Liquidity Bank or such corporation with respect to capital adequacy) by an amount deemed by such Liquidity Bank to be material, then from time to time, within ten (10) Business Days after demand by such Liquidity Bank, BAFC shall be obligated to pay or cause to be paid to such Liquidity Bank such additional amount or amounts as will compensate such Liquidity Bank for such reduction. Each Liquidity Bank shall give BAFC and the Administrative Agent notice within a reasonable time of such Liquidity Bank having actual knowledge of the occurrence of any event that will entitle the Liquidity Bank to claim the payment of additional amounts under this SUBSECTION 4.05(C). Notwithstanding the foregoing, BAFC shall not be required to pay any Liquidity Bank, as applicable, such additional amounts to the extent such amounts relate to periods prior to one hundred and twenty (120) days of BAFC's receipt of such demand; PROVIDED that, if such change in law giving rise to such reduction is retroactive, then the one hundred and twenty (120) day period shall be extended to include the period of retroactive effect thereof. (d) If any Liquidity Bank on its own behalf makes a demand for amounts owed under this SECTION 4.05, BAFC shall have the right, if no event then exists which is or with the lapse of time or notice or both would be a Mandatory Liquidation Event, within ninety (90) days of the date of such demand, to remove such Liquidity Bank (the "AFFECTED PERSON") and to designate another lender (the "REPLACEMENT PERSON") reasonably acceptable to the Administrative Agent and meeting the requirements of SECTION 11.05 hereof to purchase the Affected Person's outstanding Liquidity Loans and to assume the Affected Person's obligations under this Agreement; PROVIDED that increased costs incurred by such Liquidity Bank prior to the date of its replacement shall have been paid as provided in the previous paragraph; and PROVIDED FURTHER, that BAFC first receives confirmation from the Series 2000-1 Rating Agencies that such replacement will not result in the reduction or withdrawal of the rating of the Commercial Paper. The Affected Person agrees to sell to the Replacement Person its outstanding Liquidity Loans (at par, with accrued interest through the date of purchase, in immediately available funds) and to delegate to the Replacement Person its obligations to BAFC and its future obligations to the Administrative Agent under this Agreement. Upon such sale and delegation by the Affected Person and the purchase and assumption 17 by the Replacement Person, and compliance with the provisions of SECTION 11.05 hereof, the Affected Person shall cease to be a Liquidity Bank hereunder and the Replacement Person shall become a Liquidity Bank under this Agreement. Each Affected Person shall continue to be entitled to receive from BAFC its share of interest, fees, costs and other sums which have not been assigned by the Affected Person to the Replacement Person. (e) Notwithstanding anything in this Agreement to the contrary, it is understood that any Participant shall be entitled to the payment of increased costs under this SECTION 4.05 and SECTION 4.06 hereof to the extent such increased costs would have been required to be paid had no participating interest been sold.
Appears in 1 contract
Samples: Liquidity Agreement (Bunge LTD)
Increased Costs Capital Adequacy. (a) If, on or after the date of this Agreement, the adoption of any law or regulation, or any change therein, or any change in the interpretation or administration thereof by any court, administrative or governmental authority, central bank or comparable agency charged with the interpretation or administration thereof or compliance by any Liquidity Bank with any request or directive issued after the date hereof (whether or not having the force of law) of any such authority, central bank or comparable agency shall either:
(i) impose, modify or deem applicable any reserve, special deposit or similar requirement against (or against any class of, a change in or in the amount of) assets or liabilities of, or commitments or extensions of credit by, any Liquidity Bank;
(ii) shall subject any Liquidity Bank to any tax of any kind with respect to this Agreement, the Liquidity Loan Notes or any Liquidity Loan made by it, or change the basis of taxation of payments to such Liquidity Bank in respect thereof (except for changes in the rate or the basis of tax on the overall net income of such Liquidity Bank); or
(iii) impose on any Liquidity Bank any other condition regarding this Agreement or its Liquidity Commitment, and the result of any event referred to in clause (i)-(iii) above shall be to increase the cost to any Liquidity Bank of issuing or maintaining its Liquidity Commitment or its LIBOR Liquidity Loans (or, in the case of (ii) above, any Liquidity Loans) or to reduce the amounts receivable by any Liquidity Bank hereunder (which increase in cost or reduction in amounts receivable shall be the result of any Liquidity Bank's ’s reasonable allocation of the aggregate of such cost increase or reductions resulting from such events), then, upon written demand by any Liquidity Bank, BAFC shall, within ten (10) Business Days of receipt of such demand, be obligated to pay to such Liquidity Bank, from time to time as specified by such Liquidity Bank, additional amounts which in the aggregate shall be sufficient to compensate such Liquidity Bank for such increased cost or reduction, together with interest on each such amount from the date demanded until payment in full thereof at a rate per annum equal to the lesser of (A) the Legal Rate or (B) ABR. A certificate setting forth in reasonable detail such increased cost incurred or reduction in amounts receivable by any Liquidity Bank as a result of any event mentioned in clause (i), (ii) or (iii) of this subsection, submitted by any Liquidity Bank to BAFC, shall, unless otherwise required by law, be conclusive, absent manifest error, as to the amount thereof. Each Liquidity Bank shall give BAFC and the Administrative Agent notice, within a reasonable period of time of such Liquidity Bank having actual knowledge of the occurrence of any event that will entitle such Liquidity Bank to claim the payment of additional amounts under this SUBSECTION 4.05(Asubsection 4.05(a). Notwithstanding the foregoing, BAFC shall not be required to pay any Liquidity Bank, as applicable, such additional amounts to the extent such amounts relate to periods prior to one hundred and twenty (120) days of BAFC's ’s receipt of such demand; PROVIDED provided that, if such change in law giving rise to such increased cost or reduction is retroactive, then the one hundred and twenty (120) day period shall be extended to include the period of retroactive effect thereof.
(b) If any of the events requiring payments of additional amounts by BAFC under subsection (a) occurs, each Liquidity Bank shall take such steps as may be reasonable to avoid BAFC being required to pay any additional amounts and shall consult with BAFC in good faith with a view to agreeing to alternative arrangements which would not subject such Liquidity Bank to any unreimbursed cost and would not otherwise be disadvantageous to such Liquidity Bank, whereby any such requirement can be avoided or mitigated, including without limitation, fulfilling any such Liquidity Bank's ’s obligations through another branch or affiliate.
(c) If any Liquidity Bank shall have determined that on or after the date hereof, the adoption of any applicable law, rule or regulation regarding capital adequacyadequacy or liquidity, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Liquidity Bank or any corporation controlling such Liquidity Bank with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the capital of such Liquidity Bank or such corporation as a consequence of the Liquidity Commitment or its obligations hereunder or under any participation agreement to a level below that which such Liquidity Bank or such corporation could have achieved but for such adoption, change or compliance (taking into consideration the policies of such Liquidity Bank or such corporation with respect to capital adequacyadequacy or liquidity) by an amount deemed by such Liquidity Bank to be material, then from time to time, within ten (10) Business Days after demand by such Liquidity Bank, BAFC shall be obligated to pay or cause to be paid to such Liquidity Bank such additional amount or amounts as will compensate such Liquidity Bank for such reduction. Each Liquidity Bank shall give BAFC and the Administrative Agent notice within a reasonable time of such Liquidity Bank having actual knowledge of the occurrence of any event that will entitle the Liquidity Bank to claim the payment of additional amounts under this SUBSECTION 4.05(Csubsection 4.05(c). Notwithstanding the foregoing, BAFC shall not be required to pay any Liquidity Bank, as applicable, such additional amounts to the extent such amounts relate to periods prior to one hundred and twenty (120) days of BAFC's ’s receipt of such demand; PROVIDED provided that, if such change in law giving rise to such reduction is retroactive, then the one hundred and twenty (120) day period shall be extended to include the period of retroactive effect thereof.
(d) If any Liquidity Bank on its own behalf makes a demand for amounts owed under this SECTION Section 4.05, BAFC shall have the right, if no event then exists which is or with the lapse of time or notice or both would be a Mandatory Liquidation Event, within ninety (90) days of the date of such demand, to remove such Liquidity Bank (the "AFFECTED PERSON"“Affected Person”) and to designate another lender (the "REPLACEMENT PERSON"“Replacement Person”) reasonably acceptable to the Administrative Agent and meeting the requirements of SECTION Section 11.05 hereof to purchase the Affected Person's ’s outstanding Liquidity Loans and to assume the Affected Person's ’s obligations under this Agreement; PROVIDED provided that increased costs incurred by such Liquidity Bank prior to the date of its replacement shall have been paid as provided in the previous paragraph; and PROVIDED FURTHERprovided further, that BAFC first receives confirmation from the Series 2000-1 Rating Agencies that such replacement will not result in the reduction or withdrawal of the rating of the Commercial Paper. The Affected Person agrees to sell to the Replacement Person its outstanding Liquidity Loans (at par, with accrued interest through the date of purchase, in immediately available funds) and to delegate to the Replacement Person its obligations to BAFC and its future obligations to the Administrative Agent under this Agreement. Upon such sale and delegation by the Affected Person and the purchase and assumption 17 by the Replacement Person, and compliance with the provisions of SECTION 11.05 hereof, the Affected Person shall cease to be a Liquidity Bank hereunder and the Replacement Person shall become a Liquidity Bank under this Agreement. Each Affected Person shall continue to be entitled to receive from BAFC its share of interest, fees, costs and other sums which have not been assigned by the Affected Person to the Replacement Person.
(e) Notwithstanding anything in this Agreement to the contrary, it is understood that any Participant shall be entitled to the payment of increased costs under this SECTION 4.05 and SECTION 4.06 hereof to the extent such increased costs would have been required to be paid had no participating interest been sold.the
Appears in 1 contract
Samples: Liquidity Agreement (Bunge LTD)
Increased Costs Capital Adequacy. (a) If, on or a If after the date hereof, any Affected Party shall be charged any fee, expense or increased cost on account of this Agreement, the adoption of any law Applicable Law (including any Applicable Law regarding capital adequacy or regulationliquidity), any accounting principles or any change thereinin any of the foregoing, or any change in the interpretation or administration thereof by any courtGovernmental Authority, administrative or governmental authoritythe Financial Accounting Standards Board, any central bank or any comparable agency charged with the interpretation or administration thereof thereof, or compliance by any Liquidity Bank with any request or directive issued after the date hereof (whether or not having the force of law) of any such authority, central bank authority or comparable agency shall either:
(a “Regulatory Change”): (i) impose, modify or deem applicable that subjects any reserve, special deposit or similar requirement against (or against any class of, a change in or in the amount of) assets or liabilities of, or commitments or extensions of credit by, any Liquidity Bank;
(ii) shall subject any Liquidity Bank Affected Party to any tax of any kind charge or withholding on or with respect to this Agreement, the Liquidity Loan Notes any Transaction Document or any Liquidity Loan made by itan Affected Party’s obligations under a Transaction Document, or change on or with respect to the Advances, or changes the basis of taxation of payments to such Liquidity Bank in respect thereof any Affected Party of any amounts payable under any Transaction Document (except for changes in the rate or the basis of tax on the overall net income of such Liquidity Bank); or
an Affected Party or taxes excluded by Section 2.13) or (ii) that imposes, modifies or deems applicable any reserve, assessment, insurance charge, special deposit or similar requirement against assets of, deposits with or for the account of an Affected Party, or credit extended by an Affected Party pursuant to a Transaction Document or (iii) impose on any Liquidity Bank that imposes any other condition regarding this Agreement or its Liquidity Commitment, and the result of any event referred to in clause (i)-(iii) above shall be which is to increase the cost to any Liquidity Bank an Affected Party of issuing or maintaining performing its Liquidity Commitment or its LIBOR Liquidity Loans obligations under a Transaction Document, or to reduce the amounts rate of return on an Affected Party’s capital as a consequence of its obligations under a Transaction Document, or to reduce the amount of any sum received or receivable by an Affected Party under a Transaction Document or to require any Liquidity Bank hereunder (which increase in cost payment calculated by reference to the amount of interests or reduction in amounts receivable shall be the result of any Liquidity Bank's reasonable allocation of the aggregate of such cost increase loans held or reductions resulting from such events)interest received by it, then, upon written demand by the applicable Lender (on behalf of the relevant Affected Party) or an Agent to the Borrower, with a copy to the Servicer, the Documentation Agent and the applicable Managing Agent, the Borrower shall pay, in accordance with the Priority of Payments, to the Paying Agent, for payment to any Liquidity Bankapplicable Lenders for the benefit of the relevant Affected Party or to the applicable Agent, BAFC shallas the case may be, within ten (10) Business Days of receipt of such demand, be obligated to pay amounts charged to such Liquidity Bank, from time Affected Party or such amounts to time as specified by such Liquidity Bank, additional amounts which in the aggregate shall be sufficient to otherwise compensate such Liquidity Bank Affected Party for such increased cost or such reduction. For the avoidance of doubt, together with interest on each such amount from the date demanded until payment in full thereof at a rate per annum equal to the lesser of (A) the Legal Rate Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, and all Applicable Laws, principles, interpretations, administrations, requests or directives promulgated thereunder and (B) ABRall Applicable Laws, principles, interpretations, administrations, requests or directives promulgated by the Bank for International Settlements, Basel Committee on Banking Supervision (or any successor or similar authority) or United States or foreign Governmental Authorities or central banks or comparable agencies, in each case pursuant to Basel III, are deemed to have been adopted or changed after the date hereof, regardless of the date the same were adopted or changed. A certificate setting forth in reasonable detail such increased cost incurred or reduction in amounts receivable by any Liquidity Bank b If as a result of any event mentioned or circumstance similar to those described in clause (iSection 2.12(a), (ii) or (iii) of this subsection, submitted by any Liquidity Bank to BAFC, shall, unless otherwise required by law, be conclusive, absent manifest error, as to the amount thereof. Each Liquidity Bank shall give BAFC and the Administrative Agent notice, within a reasonable period of time of such Liquidity Bank having actual knowledge of the occurrence of any event that will entitle such Liquidity Bank to claim the payment of additional amounts under this SUBSECTION 4.05(A). Notwithstanding the foregoing, BAFC shall not be an Affected Party is required to pay any Liquidity Bank, as applicable, such additional amounts to compensate a Funding Source or Support Provider in connection with this Agreement or the extent such amounts relate to periods prior to one hundred and twenty (120) days funding or maintenance of BAFC's receipt of such demand; PROVIDED that, if such change in law giving rise to such increased cost or reduction is retroactiveAdvances hereunder, then the one hundred and twenty (120) day period shall be extended to include the period of retroactive effect thereof.
(b) If any of the events requiring payments of additional amounts by BAFC under subsection (a) occurs, each Liquidity Bank shall take such steps as may be reasonable to avoid BAFC being required to pay any additional amounts and shall consult with BAFC in good faith with a view to agreeing to alternative arrangements which would not subject such Liquidity Bank to any unreimbursed cost and would not otherwise be disadvantageous to such Liquidity Bank, whereby any such requirement can be avoided or mitigated, including without limitation, fulfilling any such Liquidity Bank's obligations through another branch or affiliate.
(c) If any Liquidity Bank shall have determined that on or after the date hereof, the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Liquidity Bank or any corporation controlling such Liquidity Bank with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the capital of such Liquidity Bank or such corporation as a consequence of the Liquidity Commitment or its obligations hereunder or under any participation agreement to a level below that which such Liquidity Bank or such corporation could have achieved but for such adoption, change or compliance (taking into consideration the policies of such Liquidity Bank or such corporation with respect to capital adequacy) by an amount deemed by such Liquidity Bank to be material, then from time to time, within ten (10) Business Days next Payment Date after demand by the relevant Lender, on behalf of such Liquidity BankAffected Party, BAFC the Borrower shall be obligated pay, in accordance with the Priority of Payments, for payment to pay or cause to be paid to such Liquidity Bank any applicable Lender for the benefit of the relevant Affected Party, such additional amount or amounts as will compensate may be necessary to reimburse such Liquidity Bank Affected Party for such reduction. Each Liquidity Bank shall give BAFC and the Administrative Agent notice within a reasonable time of such Liquidity Bank having actual knowledge of the occurrence of any event that will entitle the Liquidity Bank to claim the payment of additional amounts under this SUBSECTION 4.05(C). Notwithstanding the foregoing, BAFC shall not be required to pay any Liquidity Bank, as applicable, such additional amounts to the extent such amounts relate to periods prior to one hundred and twenty (120) days of BAFC's receipt of such demand; PROVIDED that, if such change paid by it. c In determining any amount provided for in law giving rise to such reduction is retroactive, then the one hundred and twenty (120) day period shall be extended to include the period of retroactive effect thereof.
(d) If any Liquidity Bank on its own behalf makes a demand for amounts owed under this SECTION 4.05, BAFC shall have the right, if no event then exists which is or with the lapse of time or notice or both would be a Mandatory Liquidation Event, within ninety (90) days of the date of such demand, to remove such Liquidity Bank (the "AFFECTED PERSON") and to designate another lender (the "REPLACEMENT PERSON") reasonably acceptable to the Administrative Agent and meeting the requirements of SECTION 11.05 hereof to purchase the Affected Person's outstanding Liquidity Loans and to assume the Affected Person's obligations under this Agreement; PROVIDED that increased costs incurred by such Liquidity Bank prior to the date of its replacement shall have been paid as provided in the previous paragraph; and PROVIDED FURTHER, that BAFC first receives confirmation from the Series 2000-1 Rating Agencies that such replacement will not result in the reduction or withdrawal of the rating of the Commercial Paper. The Affected Person agrees to sell to the Replacement Person its outstanding Liquidity Loans (at par, with accrued interest through the date of purchase, in immediately available funds) and to delegate to the Replacement Person its obligations to BAFC and its future obligations to the Administrative Agent under this Agreement. Upon such sale and delegation by the Affected Person and the purchase and assumption 17 by the Replacement Person, and compliance with the provisions of SECTION 11.05 hereofsection, the Affected Person Party may use any reasonable averaging and attribution methods. Any Affected Party making a claim under this Section 2.12 shall cease submit to be the Borrower, with a Liquidity Bank hereunder copy to the Documentation Agent and the Replacement Person Servicer, a certificate as to such additional or increased cost or reduction, which certificate shall become a Liquidity Bank under this Agreement. Each Affected Person shall continue to be entitled to receive from BAFC its share of interest, fees, costs calculate in reasonable detail any such cost or reduction and other sums which have not been assigned by the Affected Person to the Replacement Person.
(e) Notwithstanding anything in this Agreement to the contrary, it is understood that any Participant shall be entitled to the payment of increased costs under this SECTION 4.05 and SECTION 4.06 hereof to the extent such increased costs would have been required to be paid had no participating interest been soldconclusive absent demonstrable error.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Prospect Capital Corp)
Increased Costs Capital Adequacy. (a) If, on or after the date of this Agreement, the adoption of any law or regulation, or any change therein, or any change in the interpretation or administration thereof by any court, administrative or governmental authority, central bank or comparable agency charged with the interpretation or administration thereof or compliance by any Liquidity Bank with any request or directive issued after the date hereof (whether or not having the force of law) of any such authority, central bank or comparable agency shall either:
(i) impose, modify or deem applicable any reserve, special deposit or similar requirement against (or against any class of, a change in or in the amount of) assets or liabilities of, or commitments or extensions of credit by, any Liquidity Bank;
(ii) shall subject any Liquidity Bank to any tax of any kind with respect to this Agreement, the Liquidity Loan Notes or any Liquidity Loan made by it, or change the basis of taxation of payments to such Liquidity Bank in respect thereof (except for changes in the rate or the basis of tax on the overall net income of such Liquidity Bank); or
(iii) impose on any Liquidity Bank any other condition regarding this Agreement or its Liquidity Commitment, and the result of any event referred to in clause (i)-(iii) above shall be to increase the cost to any Liquidity Bank of issuing or maintaining its Liquidity Commitment or its LIBOR Liquidity Loans or to reduce the amounts receivable by any Liquidity Bank hereunder (which increase in cost or reduction in amounts receivable shall be the result of any Liquidity Bank's ’s reasonable allocation of the aggregate of such cost increase or reductions resulting from such events), then, upon written demand by any Liquidity Bank, BAFC shall, within ten (10) Business Days of receipt of such demand, be obligated to pay to such Liquidity Bank, from time to time as specified by such Liquidity Bank, additional amounts which in the aggregate shall be sufficient to compensate such Liquidity Bank for such increased cost or reduction, together with interest on each such amount from the date demanded until payment in full thereof at a rate per annum equal to the lesser of (A) the Legal Rate or (B) ABR. A certificate setting forth in reasonable detail such increased cost incurred or reduction in amounts receivable by any Liquidity Bank as a result of any event mentioned in clause (i), (ii) or (iii) of this subsection, submitted by any Liquidity Bank to BAFC, shall, unless otherwise required by law, be conclusive, absent manifest error, as to the amount thereof. Each Liquidity Bank shall give BAFC and the Administrative Agent notice, within a reasonable period of time of such Liquidity Bank having actual knowledge of the occurrence of any event that will entitle such Liquidity Bank to claim the payment of additional amounts under this SUBSECTION 4.05(Asubsection 4.05(a). Notwithstanding the foregoing, BAFC shall not be required to pay any Liquidity Bank, as applicable, such additional amounts to the extent such amounts relate to periods prior to one hundred and twenty (120) days of BAFC's ’s receipt of such demand; PROVIDED provided that, if such change in law giving rise to such increased cost or reduction is retroactive, then the one hundred and twenty (120) day period shall be extended to include the period of retroactive effect thereof.
(b) If any of the events requiring payments of additional amounts by BAFC under subsection (a) occurs, each Liquidity Bank shall take such steps as may be reasonable to avoid BAFC being required to pay any additional amounts and shall consult with BAFC in good faith with a view to agreeing to alternative arrangements which would not subject such Liquidity Bank to any unreimbursed cost and would not otherwise be disadvantageous to such Liquidity Bank, whereby any such requirement can be avoided or mitigated, including without limitation, fulfilling any such Liquidity Bank's ’s obligations through another branch or affiliate.
(c) If any Liquidity Bank shall have determined that on or after the date hereof, the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Liquidity Bank or any corporation controlling such Liquidity Bank with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the capital of such Liquidity Bank or such corporation as a consequence of the Liquidity Commitment or its obligations hereunder or under any participation agreement to a level below that which such Liquidity Bank or such corporation could have achieved but for such adoption, change or compliance (taking into consideration the policies of such Liquidity Bank or such corporation with respect to capital adequacy) by an amount deemed by such Liquidity Bank to be material, then from time to time, within ten (10) Business Days after demand by such Liquidity Bank, BAFC shall be obligated to pay or cause to be paid to such Liquidity Bank such additional amount or amounts as will compensate such Liquidity Bank for such reduction. Each Liquidity Bank shall give BAFC and the Administrative Agent notice within a reasonable time of such Liquidity Bank having actual knowledge of the occurrence of any event that will entitle the Liquidity Bank to claim the payment of additional amounts under this SUBSECTION 4.05(Csubsection 4.05(c). Notwithstanding the foregoing, BAFC shall not be required to pay any Liquidity Bank, as applicable, such additional amounts to the extent such amounts relate to periods prior to one hundred and twenty (120) days of BAFC's ’s receipt of such demand; PROVIDED provided that, if such change in law giving rise to such reduction is retroactive, then the one hundred and twenty (120) day period shall be extended to include the period of retroactive effect thereof.
(d) If any Liquidity Bank on its own behalf makes a demand for amounts owed under this SECTION Section 4.05, BAFC shall have the right, if no event then exists which is or with the lapse of time or notice or both would be a Mandatory Liquidation Event, within ninety (90) days of the date of such demand, to remove such Liquidity Bank (the "AFFECTED PERSON"“Affected Person”) and to designate another lender (the "REPLACEMENT PERSON"“Replacement Person”) reasonably acceptable to the Administrative Agent and meeting the requirements of SECTION Section 11.05 hereof to purchase the Affected Person's ’s outstanding Liquidity Loans and to assume the Affected Person's ’s obligations under this Agreement; PROVIDED provided that increased costs incurred by such Liquidity Bank prior to the date of its replacement shall have been paid as provided in the previous paragraph; and PROVIDED FURTHERprovided further, that BAFC first receives confirmation from the Series 2000-1 Rating Agencies that such replacement will not result in the reduction or withdrawal of the rating of the Commercial Paper. The Affected Person agrees to sell to the Replacement Person its outstanding Liquidity Loans (at par, with accrued interest through the date of purchase, in immediately available funds) and to delegate to the Replacement Person its obligations to BAFC and its future obligations to the Administrative Agent under this Agreement. Upon such sale and delegation by the Affected Person and the purchase and assumption 17 by the Replacement Person, and compliance with the provisions of SECTION 11.05 hereof, the Affected Person shall cease to be a Liquidity Bank hereunder and the Replacement Person shall become a Liquidity Bank under this Agreement. Each Affected Person shall continue to be entitled to receive from BAFC its share of interest, fees, costs and other sums which have not been assigned by the Affected Person to the Replacement Person.
(e) Notwithstanding anything in this Agreement to the contrary, it is understood that any Participant shall be entitled to the payment of increased costs under this SECTION 4.05 and SECTION 4.06 hereof to the extent such increased costs would have been required to be paid had no participating interest been sold.the
Appears in 1 contract
Samples: Liquidity Agreement (Bunge LTD)
Increased Costs Capital Adequacy. (a) IfIn addition to the payment of principal, on interest and fees as stated in this Article, if there shall be any increase in the direct or after indirect costs to the date Lender of this Agreementlending, the adoption of funding or maintaining any law or regulationLoan, or any change thereinreduction in any amount received or to be received by the Lender hereunder, due to:
(i) the introduction of or any change in any Applicable Law or the interpretation or administration thereof thereof, including (without limitation) the imposition, modification or application of, or increase in, (A) any reserve, capital adequacy, special deposit, assessment or similar requirements, (B) any requirement to withhold or deduct from any amount payable to the Lender any taxes, levies, imposts, duties, fees, deductions, withholdings or charges of a similar nature (other than federal, state and local income and franchise taxes imposed upon the Lender), or any interest thereon or any penalties with respect thereto, imposed, levied, collected, assessed, withheld or deducted by any courtAuthority, administrative including subdivisions and SPAR ESOP Term Loan Agreement taxing authorities thereof, or governmental authority(C) any other restriction or condition affecting a Loan, central bank the interest rate applicable thereto or comparable agency charged with this Agreement or any other Loan Instrument;
(ii) the interpretation or administration thereof or compliance by any Liquidity Bank the Lender with any regulation, guideline or request or directive issued after the date hereof change therein from any central Lender or other Authority (whether or not having the force of law) of any such authority, central bank or comparable agency shall either:
(i) impose, modify or deem applicable any reserve, special deposit or similar requirement against (or against any class of, a change in or in the amount of) assets or liabilities of, or commitments or extensions of credit by, any Liquidity Bank);
(iiiii) shall subject any Liquidity Bank to any tax the repayment, prepayment or other reduction, in whole or in part, of any kind with respect Loan prior to the natural expiration of the applicable Interest Period, whether as a result of miscalculation, change in circumstance, consent of the Lender, acceleration of the Obligations or otherwise;
(iv) the failure by the Borrower to pay the accrued and unpaid interest on or repay the outstanding principal balance of any Loan, or any portion thereof, when required by the terms and provisions of this Agreement, the Liquidity Loan Notes or any Liquidity Loan made by it, or change the basis of taxation of payments to such Liquidity Bank in respect thereof (except for changes in the rate or the basis of tax on the overall net income of such Liquidity Bank); or
(iiiv) impose on any Liquidity Bank increase in the Lender's cost of funds under the Senior Loan Documents, including (without limitation) any increase in interest rates or fees or any reimbursement to the Senior Lender of the kinds described in clauses (i) through (iv) of this subsection; then the Borrower from time to time, upon demand by the Lender, shall pay to the Lender additional amounts sufficient to indemnify the Lender against and reimburse it for such increased costs and reduced receipts (but only to the extent such increased cost or reduced receipt has not already been included in the calculation of any interest rate or fee or otherwise reimbursed under any other condition regarding subsection of this Agreement Section), including (without limitation) amounts sufficient to compensate the Lender for any breakage or other costs and any decrease in margin or other return incurred in connection with the repayment, prepayment or other reduction of any Loan and the liquidation or redeployment of the affected deposits or other funding arrangements, in each case including, without limitation, any and all amounts accrued, accruing or otherwise applicable during the pendency of any Bankruptcy Proceeding (irrespective of whether such interest, fees and other amounts are allowed or allowable as claims in any such proceeding). In the event the Senior Lender requires the payment of any similar amount under the Senior Loan Documents, the Lender may demand that the Borrower pay to the Lender or its Liquidity Commitment, Affiliate additional amounts sufficient to compensate it for the portion of such amount proportional to the ratio of the Loans to the Senior Loans. A certificate as to the amount of such increased costs and reduced receipts submitted to the result of any event referred to in clause (i)-(iii) above Borrower by the Lender shall be conclusive as to increase the cost to any Liquidity Bank of issuing or maintaining its Liquidity Commitment or its LIBOR Liquidity Loans or to reduce existence and amount thereof absent manifest error. If the Lender has not received payment for such amounts receivable by any Liquidity Bank hereunder within five (which increase in cost or reduction in amounts receivable shall be the result of any Liquidity Bank's reasonable allocation of the aggregate of such cost increase or reductions resulting from such events), then, upon written demand by any Liquidity Bank, BAFC shall, within ten (105) Business Days of receipt the date of such demandcertificate, the Lender may apply all or a portion of the next succeeding payment or prepayment made by the Borrower, whether intended by the Borrower to be obligated interest, principal or otherwise, first to pay to such Liquidity Bank, from time to time as specified by such Liquidity Bank, additional the reduction of the amounts which in the aggregate shall be sufficient to compensate such Liquidity Bank for of such increased cost or reduction, together with interest on each such amount from the date demanded until payment in full thereof at a rate per annum equal to the lesser of (A) the Legal Rate or (B) ABR. A certificate setting forth in reasonable detail such increased cost incurred or reduction in amounts receivable by any Liquidity Bank as a result of any event mentioned in clause (i), (ii) or (iii) of this subsection, submitted by any Liquidity Bank to BAFC, shall, unless otherwise required by law, be conclusive, absent manifest error, as to the amount thereof. Each Liquidity Bank shall give BAFC costs and the Administrative Agent notice, within a reasonable period of time of such Liquidity Bank having actual knowledge of the occurrence of any event that will entitle such Liquidity Bank to claim the payment of additional amounts under this SUBSECTION 4.05(A). Notwithstanding the foregoing, BAFC shall not be required to pay any Liquidity Bank, as applicable, such additional amounts to the extent such amounts relate to periods prior to one hundred and twenty (120) days of BAFC's receipt of such demand; PROVIDED that, if such change in law giving rise to such increased cost or reduction is retroactive, then the one hundred and twenty (120) day period shall be extended to include the period of retroactive effect thereofreduced receipts.
(b) If In addition to the payment of interest or fees under this Agreement, if the Lender or any of the events requiring payments of additional amounts by BAFC under subsection its Affiliates determines or has determined that (ai) occurs, each Liquidity Bank shall take such steps as may be reasonable to avoid BAFC being required to pay compliance with any additional amounts and shall consult with BAFC in good faith with a view to agreeing to alternative arrangements which would not subject such Liquidity Bank to any unreimbursed cost and would not otherwise be disadvantageous to such Liquidity Bank, whereby any such requirement can be avoided existing or mitigatedfuture Applicable Law, including (without limitation) any regulation, fulfilling guideline or request from any such Liquidity Bank's obligations through another branch or affiliate.
(c) If any Liquidity Bank shall have determined that on or after the date hereof, the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Liquidity Bank or any corporation controlling such Liquidity Bank with any request or directive regarding capital adequacy other Authority (whether or not having the force of law) of ), or any such authoritychange therein or in the interpretation or administration thereof, central bank or comparable agency, has affects or would have affect the effect amount of reducing capital required or expected to be maintained by the Lender or its Affiliate (taking into account its policies with respect to capital adequacy and desired rate of return on capital), and (ii) the capital amount of such Liquidity Bank capital is increased by or such corporation as a consequence based upon any commitment or funding to the Borrower or any other obligation of the Liquidity Commitment Lender or its obligations hereunder Affiliates under or under related to this Agreement or any participation agreement to a level below that which other Loan Instrument (using such Liquidity Bank or such corporation could have achieved but for such adoptionaveraging, change or compliance (taking into consideration attribution and allocation methods as the policies of such Liquidity Bank or such corporation with respect to capital adequacy) by an amount deemed by such Liquidity Bank to be materialLender may reasonably deem appropriate), then the Borrower from time to time, upon demand by the Lender, shall pay to the Lender or its Affiliate additional amounts sufficient to compensate it for those circumstances, in each case including, without limitation, any and all amounts accrued, accruing or otherwise applicable during the pendency of any Bankruptcy Proceeding (irrespective of whether such amounts are allowed or allowable as claims in any such proceeding). In the event the Senior Lender requires the payment of any similar amount under the Senior Loan Documents, the Lender may demand that the Borrower pay to the Lender or its Affiliate additional amounts sufficient to compensate it for the portion of such amount proportional to the ratio of the Loans to the Senior Loans. A certificate as to the amount of such compensation submitted to the Borrower by the Lender shall be conclusive as to the existence and amount thereof absent manifest error. If the Lender has not received payment for such amounts within ten five (105) Business Days after demand by such Liquidity Bank, BAFC shall be obligated to pay or cause to be paid to such Liquidity Bank such additional amount or amounts as will compensate such Liquidity Bank for such reduction. Each Liquidity Bank shall give BAFC and the Administrative Agent notice within a reasonable time of such Liquidity Bank having actual knowledge of the occurrence of any event that will entitle the Liquidity Bank to claim the payment of additional amounts under this SUBSECTION 4.05(C). Notwithstanding the foregoing, BAFC shall not be required to pay any Liquidity Bank, as applicable, such additional amounts to the extent such amounts relate to periods prior to one hundred and twenty (120) days of BAFC's receipt of such demand; PROVIDED that, if such change in law giving rise to such reduction is retroactive, then the one hundred and twenty (120) day period shall be extended to include the period of retroactive effect thereof.
(d) If any Liquidity Bank on its own behalf makes a demand for amounts owed under this SECTION 4.05, BAFC shall have the right, if no event then exists which is or with the lapse of time or notice or both would be a Mandatory Liquidation Event, within ninety (90) days of the date of such demandcertificate, the Lender may apply all or a portion of the next succeeding payment or prepayment made by the Borrower, whether intended by the Borrower to remove such Liquidity Bank (the "AFFECTED PERSON") and to designate another lender (the "REPLACEMENT PERSON") reasonably acceptable be interest, principal or otherwise, first to the Administrative Agent and meeting the requirements reduction of SECTION 11.05 hereof to purchase the Affected Person's outstanding Liquidity Loans and to assume the Affected Person's obligations under this Agreement; PROVIDED that increased costs incurred by such Liquidity Bank prior to the date of its replacement shall have been paid as provided in the previous paragraph; and PROVIDED FURTHER, that BAFC first receives confirmation from the Series 2000-1 Rating Agencies that such replacement will not result in the reduction or withdrawal of the rating of the Commercial Paper. The Affected Person agrees to sell to the Replacement Person its outstanding Liquidity Loans (at par, with accrued interest through the date of purchase, in immediately available funds) and to delegate to the Replacement Person its obligations to BAFC and its future obligations to the Administrative Agent under this Agreement. Upon such sale and delegation by the Affected Person and the purchase and assumption 17 by the Replacement Person, and compliance with the provisions of SECTION 11.05 hereof, the Affected Person shall cease to be a Liquidity Bank hereunder and the Replacement Person shall become a Liquidity Bank under this Agreement. Each Affected Person shall continue to be entitled to receive from BAFC its share of interest, fees, costs and other sums which have not been assigned by the Affected Person to the Replacement Personbilled amount.
(ec) Notwithstanding anything in this Agreement to the contrary, it is understood that any Participant shall be entitled In addition to the payment of increased costs and reduced receipts as provided in this Section (but without duplication of such amounts), as well as the payment of principal, interest and fees as stated elsewhere herein, the Borrower acknowledges and agrees that: in extending the Loans (rather than SPAR ESOP Term Loan Agreement receiving a cash payment under this SECTION 4.05 the Stock Purchase Agreement) the Lender will be carrying a corresponding higher level of loans under the Senior Loan Documents; and SECTION 4.06 hereof accordingly, from time to time, upon demand by the Lender, the Borrower shall pay to the extent Lender or its Affiliate additional amounts sufficient to compensate it for its pro rata share (based on the ratio of the then outstanding balance of the Loans to the then outstanding balance of the loans under the Senior Loan Documents) of any and all fees, costs, reimbursements, expenses or other amounts (other than principal and interest and without duplication of the amounts covered by subsections (a) and (b) of this Section) owed by any Senior Borrower under the Senior Loan Documents, in each case including, without limitation, any and all amounts accrued, accruing or otherwise applicable during the pendency of any Bankruptcy Proceeding (irrespective of whether such increased costs would have been required to be paid had no participating interest been soldamounts are allowed or allowable as claims in any such proceeding).
Appears in 1 contract
Samples: Term Loan, Guaranty and Security Agreement (Spar Group Inc)
Increased Costs Capital Adequacy. (a) If, on or after the date of this Agreement, the adoption of any law or regulation, or any change therein, or any change in the interpretation or administration thereof by any court, administrative or governmental authority, central bank or comparable agency charged with the interpretation or administration thereof or compliance by any Liquidity Bank with any request or directive issued after the date hereof (whether or not having the force of law) of any such authority, central bank or comparable agency shall either:
(i) imposeIf the adoption, modify effectiveness or deem applicable any reservephase-in, special deposit or similar requirement against (or against any class of, a change in or in the amount of) assets or liabilities of, or commitments or extensions of credit by, any Liquidity Bank;
(ii) shall subject any Liquidity Bank to any tax of any kind with respect to this Agreement, the Liquidity Loan Notes or any Liquidity Loan made by it, or change the basis of taxation of payments to such Liquidity Bank in respect thereof (except for changes in the rate or the basis of tax on the overall net income of such Liquidity Bank); or
(iii) impose on any Liquidity Bank any other condition regarding this Agreement or its Liquidity Commitment, and the result of any event referred to in clause (i)-(iii) above shall be to increase the cost to any Liquidity Bank of issuing or maintaining its Liquidity Commitment or its LIBOR Liquidity Loans or to reduce the amounts receivable by any Liquidity Bank hereunder (which increase in cost or reduction in amounts receivable shall be the result of any Liquidity Bank's reasonable allocation of the aggregate of such cost increase or reductions resulting from such events), then, upon written demand by any Liquidity Bank, BAFC shall, within ten (10) Business Days of receipt of such demand, be obligated to pay to such Liquidity Bank, from time to time as specified by such Liquidity Bank, additional amounts which in the aggregate shall be sufficient to compensate such Liquidity Bank for such increased cost or reduction, together with interest on each such amount from the date demanded until payment in full thereof at a rate per annum equal to the lesser of (A) the Legal Rate or (B) ABR. A certificate setting forth in reasonable detail such increased cost incurred or reduction in amounts receivable by any Liquidity Bank as a result of any event mentioned in clause (i), (ii) or (iii) of this subsection, submitted by any Liquidity Bank to BAFC, shall, unless otherwise required by law, be conclusive, absent manifest error, as to the amount thereof. Each Liquidity Bank shall give BAFC and the Administrative Agent notice, within a reasonable period of time of such Liquidity Bank having actual knowledge of the occurrence of any event that will entitle such Liquidity Bank to claim the payment of additional amounts under this SUBSECTION 4.05(A). Notwithstanding the foregoing, BAFC shall not be required to pay any Liquidity Bank, as applicable, such additional amounts to the extent such amounts relate to periods prior to one hundred and twenty (120) days of BAFC's receipt of such demand; PROVIDED that, if such change in law giving rise to such increased cost or reduction is retroactive, then the one hundred and twenty (120) day period shall be extended to include the period of retroactive effect thereof.
(b) If any of the events requiring payments of additional amounts by BAFC under subsection (a) occurs, each Liquidity Bank shall take such steps as may be reasonable to avoid BAFC being required to pay any additional amounts and shall consult with BAFC in good faith with a view to agreeing to alternative arrangements which would not subject such Liquidity Bank to any unreimbursed cost and would not otherwise be disadvantageous to such Liquidity Bank, whereby any such requirement can be avoided or mitigated, including without limitation, fulfilling any such Liquidity Bank's obligations through another branch or affiliate.
(c) If any Liquidity Bank shall have determined that on or after the date hereof, the adoption of any applicable law, rule or regulation regarding capital adequacyregulation, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Liquidity Bank or any corporation controlling such Liquidity the Bank with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency:
(A) shall subject the Bank to any Imposition or other charge with respect to any Fixed Rate Loan, the Term Note or the Bank's agreement to make Fixed Rate Loans, or shall change the basis of taxation of payments to the Bank of the principal of or interest on any Fixed Rate Loan or any other amounts due under this letter agreement in respect of the Fixed Rate Loans or the Bank's agreement to make Fixed Rate Loans (except for changes in the rate of tax on the over-all net income of the Bank); or
(B) shall impose, modify or deem applicable any reserve, special deposit, deposit insurance or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System, but excluding, with respect to any LIBOR Loan, any such requirement already included in the applicable Reserve Rate) against assets of, deposits with or for the account of, or credit extended by, the Bank or shall impose on the Bank or on the London interbank market any other condition affecting any Fixed Rate Loans, the Term Note or the Bank's agreement to make Fixed Rate Loans and the result of any of the foregoing is to increase the cost to the Bank of making or maintaining any Fixed Rate Loan or to reduce the amount of any sum received or receivable by the Bank under this letter agreement or under the Term Note with respect to any Fixed Rate Loan by an amount deemed by the Bank to be material, then, upon demand by the Bank and receipt of a Bank Certificate from the Bank with respect thereto, the Borrower shall pay to the Bank such additional amount or amounts as the Bank certifies to be necessary to compensate the Bank for such increased cost or reduction in amount received or receivable.
(ii) If the Bank shall have determined that the adoption, effectiveness or phase-in after the date hereof of any applicable law, rule or regulation regarding capital requirements for banks or bank holding companies, or any change therein after the date hereof, or any change after the date hereof in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Bank with any request or directive of such entity regarding capital adequacy (whether or not having the force of law) has or would have the effect of reducing the rate of return on the Bank's capital of such Liquidity Bank with respect to its agreement hereunder to make Term Loans or such corporation as a consequence of the Liquidity Commitment with respect to any Term Loan (whether or its obligations hereunder not then subject to any Eurodollar Interest Rate or under any participation agreement COF Interest Rate) to a level below that which such Liquidity the Bank or such corporation could have achieved but for such adoption, change or compliance (taking into consideration the Bank's policies with
(A) the Bank shall promptly after its determination of such Liquidity occurrence give notice thereof to the Borrower; and
(B) the Borrower shall pay to the Bank or such corporation with respect to capital adequacy) by as an amount deemed by such Liquidity Bank to be material, then additional fee from time to time, within ten time on demand such amount as the Bank certifies to be the amount that will compensate it for such reduction.
(10iii) Business Days after demand by such Liquidity Bank, BAFC A Bank Certificate of the Bank claiming compensation under this [Section]1.8 shall be obligated conclusive in the absence of manifest error. Such certificate shall set forth the nature of the occurrence giving rise to pay such compensation, the additional amount or cause amounts to be paid to such Liquidity Bank such additional amount or amounts as will compensate such Liquidity Bank for such reduction. Each Liquidity Bank shall give BAFC and the Administrative Agent notice within a reasonable time of such Liquidity Bank having actual knowledge of the occurrence of any event that will entitle the Liquidity Bank to claim the payment of additional amounts under this SUBSECTION 4.05(C). Notwithstanding the foregoing, BAFC shall not be required to pay any Liquidity Bank, as applicable, such additional amounts to the extent such amounts relate to periods prior to one hundred and twenty (120) days of BAFC's receipt of such demand; PROVIDED that, if such change in law giving rise to such reduction is retroactive, then the one hundred and twenty (120) day period shall be extended to include the period of retroactive effect thereof.
(d) If any Liquidity Bank on its own behalf makes a demand for amounts owed under this SECTION 4.05, BAFC shall have the right, if no event then exists which is or with the lapse of time or notice or both would be a Mandatory Liquidation Event, within ninety (90) days of the date of such demand, to remove such Liquidity Bank (the "AFFECTED PERSON") and to designate another lender (the "REPLACEMENT PERSON") reasonably acceptable to the Administrative Agent and meeting the requirements of SECTION 11.05 hereof to purchase the Affected Person's outstanding Liquidity Loans and to assume the Affected Person's obligations under this Agreement; PROVIDED that increased costs incurred by such Liquidity Bank prior to the date of its replacement shall have been paid as provided in the previous paragraph; and PROVIDED FURTHER, that BAFC first receives confirmation from the Series 2000-1 Rating Agencies that such replacement will not result in the reduction or withdrawal of the rating of the Commercial Paper. The Affected Person agrees to sell to the Replacement Person its outstanding Liquidity Loans (at par, with accrued interest through the date of purchase, in immediately available funds) and to delegate to the Replacement Person its obligations to BAFC and its future obligations to the Administrative Agent under this Agreement. Upon such sale and delegation by the Affected Person and the purchase and assumption 17 by the Replacement Person, and compliance with the provisions of SECTION 11.05 hereof, the Affected Person shall cease to be a Liquidity Bank hereunder and the Replacement Person method by which such amounts are determined. In determining any such amount, the Bank may use any reasonable averaging and attribution methods.
(iv) No failure on the part of the Bank to demand compensation on any one occasion shall become constitute a Liquidity waiver of its right to demand such compensation on any other occasion and no failure on the part of the Bank to deliver any Bank Certificate in a timely manner shall in any way reduce any obligation of the Borrower to the Bank under this Agreement. Each Affected Person shall continue to be entitled to receive from BAFC its share of interest, fees, costs and other sums which have not been assigned by the Affected Person to the Replacement Person[Section]1.8.
(e) Notwithstanding anything in this Agreement to the contrary, it is understood that any Participant shall be entitled to the payment of increased costs under this SECTION 4.05 and SECTION 4.06 hereof to the extent such increased costs would have been required to be paid had no participating interest been sold.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If, on or after the date of this Agreement, the adoption of any law or regulation, or any change therein, or any change in the interpretation or administration thereof by any court, administrative or governmental authority, central bank or comparable agency charged with the interpretation or administration thereof or compliance by any Liquidity Bank with any request or directive issued after the date hereof (whether or not having the force of law) of any such authority, central bank or comparable agency shall either:
(i) imposeIf the adoption, modify effectiveness or deem applicable any reservephase-in, special deposit or similar requirement against (or against any class of, a change in or in the amount of) assets or liabilities of, or commitments or extensions of credit by, any Liquidity Bank;
(ii) shall subject any Liquidity Bank to any tax of any kind with respect to this Agreement, the Liquidity Loan Notes or any Liquidity Loan made by it, or change the basis of taxation of payments to such Liquidity Bank in respect thereof (except for changes in the rate or the basis of tax on the overall net income of such Liquidity Bank); or
(iii) impose on any Liquidity Bank any other condition regarding this Agreement or its Liquidity Commitment, and the result of any event referred to in clause (i)-(iii) above shall be to increase the cost to any Liquidity Bank of issuing or maintaining its Liquidity Commitment or its LIBOR Liquidity Loans or to reduce the amounts receivable by any Liquidity Bank hereunder (which increase in cost or reduction in amounts receivable shall be the result of any Liquidity Bank's reasonable allocation of the aggregate of such cost increase or reductions resulting from such events), then, upon written demand by any Liquidity Bank, BAFC shall, within ten (10) Business Days of receipt of such demand, be obligated to pay to such Liquidity Bank, from time to time as specified by such Liquidity Bank, additional amounts which in the aggregate shall be sufficient to compensate such Liquidity Bank for such increased cost or reduction, together with interest on each such amount from the date demanded until payment in full thereof at a rate per annum equal to the lesser of (A) the Legal Rate or (B) ABR. A certificate setting forth in reasonable detail such increased cost incurred or reduction in amounts receivable by any Liquidity Bank as a result of any event mentioned in clause (i), (ii) or (iii) of this subsection, submitted by any Liquidity Bank to BAFC, shall, unless otherwise required by law, be conclusive, absent manifest error, as to the amount thereof. Each Liquidity Bank shall give BAFC and the Administrative Agent notice, within a reasonable period of time of such Liquidity Bank having actual knowledge of the occurrence of any event that will entitle such Liquidity Bank to claim the payment of additional amounts under this SUBSECTION 4.05(A). Notwithstanding the foregoing, BAFC shall not be required to pay any Liquidity Bank, as applicable, such additional amounts to the extent such amounts relate to periods prior to one hundred and twenty (120) days of BAFC's receipt of such demand; PROVIDED that, if such change in law giving rise to such increased cost or reduction is retroactive, then the one hundred and twenty (120) day period shall be extended to include the period of retroactive effect thereof.
(b) If any of the events requiring payments of additional amounts by BAFC under subsection (a) occurs, each Liquidity Bank shall take such steps as may be reasonable to avoid BAFC being required to pay any additional amounts and shall consult with BAFC in good faith with a view to agreeing to alternative arrangements which would not subject such Liquidity Bank to any unreimbursed cost and would not otherwise be disadvantageous to such Liquidity Bank, whereby any such requirement can be avoided or mitigated, including without limitation, fulfilling any such Liquidity Bank's obligations through another branch or affiliate.
(c) If any Liquidity Bank shall have determined that on or after the date hereof, the adoption of any applicable law, rule or regulation regarding capital adequacyregulation, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Liquidity Bank or any corporation controlling such Liquidity the Bank with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency:
(A) shall subject the Bank to any Imposition or other charge with respect to any COF Loan or the Bank's agreement to make COF Loans, or shall change the basis of taxation of payments to the Bank of the principal of or interest on any COF Loan or any other amounts due under this letter agreement in respect of COF Loans or the Bank's agreement to make or maintain COF Loans (except for changes in the rate of tax on the over-all net income of the Bank); or
(B) shall impose, modify or deem applicable any reserve, special deposit, deposit insurance or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System), against assets of, deposits with or for the account of, or credit extended by, the Bank or shall impose on the Bank any other condition affecting any COF Loans or the Bank's agreement to make COF Loans and the result of any of the foregoing is to increase the cost to the Bank of making or maintaining any COF Loan or to reduce the amount of any sum received or receivable by the Bank under this letter agreement and/or the Term Note and/or with respect to any COF Loan by an amount deemed by the Bank to be material, then, upon demand by the Bank and receipt of a Bank Certificate from the Bank with respect thereto, the Borrower shall pay to the Bank such additional amount or amounts as the Bank certifies to be necessary to compensate the Bank reasonably for such increased cost or reduction in amount received or receivable.
(ii) If the Bank shall have determined that the adoption, effectiveness or phase-in after the date hereof of any applicable law, rule or regulation regarding capital requirements for banks or bank holding companies, or any change therein after the date hereof, or any change after the date hereof in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Bank with any request or directive of such entity regarding capital adequacy (whether or not having the force of law) has or would have the effect of reducing the rate of return on the Bank's capital with respect to any Loan, any letter of credit and/or any Foreign Exchange Contract or with respect to any of its agreements hereunder to make Loans (all such Liquidity Bank Loans, whether or such corporation as a consequence not subject to any COF Interest Rate), issue letters of the Liquidity Commitment or its obligations hereunder or under any participation agreement credit and issue Foreign Exchange Contracts to a level below that which such Liquidity the Bank or such corporation could have achieved but for such adoption, change or compliance (taking into consideration the Bank's policies of such Liquidity Bank or such corporation with respect to capital adequacyadequacy immediately before such adoption, effectiveness, phase-in, change or compliance and assuming that the Bank's capital was then fully utilized) by an any amount deemed by such Liquidity the Bank to be material, then : (A) the Bank shall promptly after its determination of such occurrence deliver a Bank Certificate with respect thereto to the Borrower; and (B) the Borrower shall pay to the Bank as an additional fee from time to time, within ten time on demand such amount as the Bank certifies to be the amount that will reasonably compensate for such reduction.
(10iii) Business Days after demand by such Liquidity Bank, BAFC A Bank Certificate of the Bank claiming compensation under this Section 1.9 shall be obligated deemed PRIMA FACIE correct. Such certificate shall set forth the nature of the occurrence giving rise to pay such claim for compensation, the additional amount or cause amounts to be paid to such Liquidity Bank such additional amount or amounts as will compensate such Liquidity Bank for such reduction. Each Liquidity Bank shall give BAFC and the Administrative Agent notice within a reasonable time of such Liquidity Bank having actual knowledge of the occurrence of any event that will entitle the Liquidity Bank to claim the payment of additional amounts under this SUBSECTION 4.05(C). Notwithstanding the foregoing, BAFC shall not be required to pay any Liquidity Bank, as applicable, such additional amounts to the extent such amounts relate to periods prior to one hundred and twenty (120) days of BAFC's receipt of such demand; PROVIDED that, if such change in law giving rise to such reduction is retroactive, then the one hundred and twenty (120) day period shall be extended to include the period of retroactive effect thereof.
(d) If any Liquidity Bank on its own behalf makes a demand for amounts owed under this SECTION 4.05, BAFC shall have the right, if no event then exists which is or with the lapse of time or notice or both would be a Mandatory Liquidation Event, within ninety (90) days of the date of such demand, to remove such Liquidity Bank (the "AFFECTED PERSON") and to designate another lender (the "REPLACEMENT PERSON") reasonably acceptable to the Administrative Agent and meeting the requirements of SECTION 11.05 hereof to purchase the Affected Person's outstanding Liquidity Loans and to assume the Affected Person's obligations under this Agreement; PROVIDED that increased costs incurred by such Liquidity Bank prior to the date of its replacement shall have been paid as provided in the previous paragraph; and PROVIDED FURTHER, that BAFC first receives confirmation from the Series 2000-1 Rating Agencies that such replacement will not result in the reduction or withdrawal of the rating of the Commercial Paper. The Affected Person agrees to sell to the Replacement Person its outstanding Liquidity Loans (at par, with accrued interest through the date of purchase, in immediately available funds) and to delegate to the Replacement Person its obligations to BAFC and its future obligations to the Administrative Agent under this Agreement. Upon such sale and delegation by the Affected Person and the purchase and assumption 17 by the Replacement Person, and compliance with the provisions of SECTION 11.05 hereof, the Affected Person shall cease to be a Liquidity Bank hereunder and the Replacement Person method by which such amounts are determined. In determining any such amount, the Bank may use any reasonable averaging and attribution methods.
(iv) No failure on the part of the Bank to demand compensation on any one occasion shall become constitute a Liquidity waiver of its right to demand such compensation on any other occasion and no failure on the part of the Bank to deliver any Bank Certificate in a timely manner shall in any way reduce any obligation of the Borrower to the Bank under this Agreement. Each Affected Person shall continue to be entitled to receive from BAFC its share of interest, fees, costs and other sums which have not been assigned by the Affected Person to the Replacement PersonSection 1.9.
(e) Notwithstanding anything in this Agreement to the contrary, it is understood that any Participant shall be entitled to the payment of increased costs under this SECTION 4.05 and SECTION 4.06 hereof to the extent such increased costs would have been required to be paid had no participating interest been sold.
Appears in 1 contract
Increased Costs Capital Adequacy. (a) If, on or after the date of this Agreement, the adoption of any law or regulation, or any change therein, or any change in the interpretation or administration thereof by any court, administrative or governmental authority, central bank or comparable agency charged with the interpretation or administration thereof or compliance by any Liquidity Bank with any request or directive issued after the date hereof (whether or not having the force of law) of any such authority, central bank or comparable agency shall either:
(i) impose, modify or deem applicable any reserve, special deposit or similar requirement against (or against any class of, a change in or in the amount of) assets or liabilities of, or commitments or extensions of credit by, any Liquidity Bank;
(ii) shall subject any Liquidity Bank to any tax of any kind with respect to this Agreement, the Liquidity Loan Notes or any Liquidity Loan made by it, or change the basis of taxation of payments to such Liquidity Bank in respect thereof (except for changes in the rate or the basis of tax on the overall net income of such Liquidity Bank); or
(iii) impose on any Liquidity Bank any other condition regarding this Agreement or its the Liquidity CommitmentCommitment with respect to any Liquidity Commitment Tranche, and the result of any event referred to in clause (i)-(iii) above shall be to increase the cost to any Liquidity Bank of issuing or maintaining its the Liquidity Commitment or its LIBOR with respect to any Liquidity Loans Commitment Tranche or to reduce the amounts receivable by any Liquidity Bank hereunder (which increase in cost or reduction in amounts receivable shall be the result of any Liquidity Bank's ’s reasonable allocation of the aggregate of such cost increase or reductions resulting from such events), then, upon written demand by any Liquidity Bank, BAFC shall, within ten (10) Business Days of receipt of such demand, be obligated to pay to such Liquidity Bank, from time to time as specified by such Liquidity Bank, additional amounts which in the aggregate shall be sufficient to compensate such Liquidity Bank for such increased cost or reduction, together with interest on each such amount from the date demanded until payment in full thereof at a rate per annum equal to the lesser of (A) the Legal Rate or (B) ABR. A certificate setting forth in reasonable detail such increased cost incurred or reduction in amounts receivable by any Liquidity Bank as a result of any event mentioned in clause (i), (ii) or (iii) of this subsection, submitted by any Liquidity Bank to BAFC, shall, unless otherwise required by law, be conclusive, absent manifest error, as to the amount thereof. Each Liquidity Bank shall give BAFC and the Administrative Agent notice, within a reasonable period of time of such Liquidity Bank having actual knowledge of the occurrence of any event that will entitle such Liquidity Bank to claim the payment of additional amounts under this SUBSECTION 4.05(Asubsection 4.05(a). Notwithstanding the foregoing, BAFC shall not be required to pay any Liquidity Bank, as applicable, such additional amounts to the extent such amounts relate to periods prior to one hundred and twenty (120) days of BAFC's ’s receipt of such demand; PROVIDED provided that, if such change in law giving rise to such increased cost or reduction is retroactive, then the one hundred and twenty (120) day period shall be extended to include the period of retroactive effect thereof.
(b) If any of the events requiring payments of additional amounts by BAFC under subsection (a) occurs, each Liquidity Bank shall take such steps as may be reasonable to avoid BAFC being required to pay any additional amounts and shall consult with BAFC in good faith with a view to agreeing to alternative arrangements which would not subject such Liquidity Bank to any unreimbursed cost and would not otherwise be disadvantageous to such Liquidity Bank, whereby any such requirement can be avoided or mitigated, including without limitation, fulfilling any such Liquidity Bank's ’s obligations through another branch or affiliate.
(c) If any Liquidity Bank shall have determined that on or after the date hereof, the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Liquidity Bank or any corporation controlling such Liquidity Bank with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the capital of such Liquidity Bank or such corporation as a consequence of the Liquidity Commitment or its obligations hereunder or under any participation agreement to a level below that which such Liquidity Bank or such corporation could have achieved but for such adoption, change or compliance (taking into consideration the policies of such Liquidity Bank or such corporation with respect to capital adequacy) by an amount deemed by such Liquidity Bank to be material, then from time to time, within ten (10) Business Days after demand by such Liquidity Bank, BAFC shall be obligated to pay or cause to be paid to such Liquidity Bank such additional amount or amounts as will compensate such Liquidity Bank for such reduction. Each Liquidity Bank shall give BAFC and the Administrative Agent notice within a reasonable time of such Liquidity Bank having actual knowledge of the occurrence of any event that will entitle the Liquidity Bank to claim the payment of additional amounts under this SUBSECTION 4.05(Csubsection 4.05(c). Notwithstanding the foregoing, BAFC shall not be required to pay any Liquidity Bank, as applicable, such additional amounts to the extent such amounts relate to periods prior to one hundred and twenty (120) days of BAFC's ’s receipt of such demand; PROVIDED provided that, if such change in law giving rise to such reduction is retroactive, then the one hundred and twenty (120) day period shall be extended to include the period of retroactive effect thereof.
(d) If any Liquidity Bank on its own behalf makes a demand for amounts owed under this SECTION Section 4.05, BAFC shall have the right, if no event then exists which is or with the lapse of time or notice or both would be a Mandatory Liquidation Event, within ninety (90) days of the date of such demand, to remove such Liquidity Bank (the "AFFECTED PERSON"“Affected Person”) and to designate another lender (the "REPLACEMENT PERSON"“Replacement Person”) reasonably acceptable to the Administrative Agent and meeting the requirements of SECTION Section 11.05 hereof to purchase the Affected Person's ’s outstanding Liquidity Loans and to assume the Affected Person's ’s obligations under this Agreement; PROVIDED provided that increased costs incurred by such Liquidity Bank prior to the date of its replacement shall have been paid as provided in the previous paragraph; and PROVIDED FURTHERprovided further, that BAFC first receives confirmation from the Series 2000-1 Rating Agencies that such replacement will not result in the reduction or withdrawal of the rating of the Commercial Paper. The Affected Person agrees to sell to the Replacement Person its outstanding Liquidity Loans (at par, with accrued interest through the date of purchase, in immediately available funds) and to delegate to the Replacement Person its obligations to BAFC and its future obligations to the Administrative Agent under this Agreement. Upon such sale and delegation by the Affected Person and the purchase and assumption 17 by the Replacement Person, and compliance with the provisions of SECTION Section 11.05 hereof, the Affected Person shall cease to be a Liquidity Bank hereunder and the Replacement Person shall become a Liquidity Bank under this Agreement. Each Affected Person shall continue to be entitled to receive from BAFC its share of interest, fees, costs and other sums which have not been assigned by the Affected Person to the Replacement Person.
(e) Notwithstanding anything in this Agreement to the contrary, it is understood that any Participant shall be entitled to the payment of increased costs under this SECTION Section 4.05 and SECTION Section 4.06 hereof to the extent such increased costs would have been required to be paid had no participating interest been sold.
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Samples: Liquidity Agreement (Bunge LTD)
Increased Costs Capital Adequacy. The Borrower agrees that if: (a) If, on or after the date of this Agreementhereof, Bank shall have determined that the adoption of any law applicable law, rule or regulation, reegulation or any change therein, or any change in the interpretation or administration thereof by any court, court or any administrative or governmental authority, authority or central bank or comparable agency charged with the interpretation or administration thereof (or compliance by any Liquidity Bank with any request or directive issued after the date hereof of any such court, authority or central bank (whether or not having the force of law) of any such authority)), central bank or comparable agency shall either:
(i) either impose, affect, modify or deem applicable any reserve, special deposit deposit, capital maintenance or similar requirement against (or against any class of, a change in or in the amount of) assets or liabilities of, or commitments or extensions of credit by, any Liquidity Bank;
(ii) shall subject any Liquidity Bank to any tax of any kind with respect to this Agreement, the Liquidity Loan Notes or any Liquidity Loan made by it, or change the basis of taxation of payments to such Liquidity Bank in respect thereof (except for changes in the rate or the basis participation of tax on the overall net income of such Liquidity Bank); or
(iii) Bank therein or impose on any Liquidity Bank any other condition regarding this Agreement the Loan, or its Liquidity Commitment, and the result of any event referred to in clause (i)-(iii) above shall be to increase the cost to any Liquidity Bank of issuing or maintaining its Liquidity Commitment or its LIBOR Liquidity Loans or to reduce the amounts receivable by any Liquidity Bank hereunder (which increase in cost or reduction in amounts receivable shall be the result of any Liquidity Bank's reasonable allocation of the aggregate of such cost increase or reductions resulting from such events), then, upon written demand by any Liquidity Bank, BAFC shall, within ten (10) Business Days of receipt of such demand, be obligated to pay to such Liquidity Bank, from time to time as specified by such Liquidity Bank, additional amounts which in the aggregate shall be sufficient to compensate such Liquidity Bank for such increased cost or reduction, together with interest on each such amount from the date demanded until payment in full thereof at a rate per annum equal to the lesser of (A) the Legal Rate or (B) ABR. A certificate setting forth in reasonable detail such increased cost incurred or reduction in amounts receivable by any Liquidity Bank as a result of any event mentioned in clause (i), (ii) or (iii) of this subsection, submitted by any Liquidity Bank to BAFC, shall, unless otherwise required by law, be conclusive, absent manifest error, as to the amount thereof. Each Liquidity Bank shall give BAFC and the Administrative Agent notice, within a reasonable period of time of such Liquidity Bank having actual knowledge of the occurrence of any event that will entitle such Liquidity Bank to claim the payment of additional amounts under this SUBSECTION 4.05(A). Notwithstanding the foregoing, BAFC shall not be required to pay any Liquidity Bank, as applicable, such additional amounts to the extent such amounts relate to periods prior to one hundred and twenty (120) days of BAFC's receipt of such demand; PROVIDED that, if such change in law giving rise to such increased cost or reduction is retroactive, then the one hundred and twenty (120) day period shall be extended to include the period of retroactive effect thereof.
(b) If any of after the events requiring payments of additional amounts by BAFC under subsection (a) occursdate, each Liquidity Bank shall take such steps as may be reasonable to avoid BAFC being required to pay any additional amounts and shall consult with BAFC in good faith with a view to agreeing to alternative arrangements which would not subject such Liquidity Bank to any unreimbursed cost and would not otherwise be disadvantageous to such Liquidity Bank, whereby any such requirement can be avoided or mitigated, including without limitation, fulfilling any such Liquidity Bank's obligations through another branch or affiliate.
(c) If any Liquidity Bank shall have determined that on or after the date hereof, the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any court or any administrative or governmental authority, authority or central bank or comparable agency charged with the interpretation or administration thereof, thereof (or compliance by any Liquidity Bank or any corporation controlling such Liquidity Bank with any request or directive regarding capital adequacy (whether or not having the force of law)) of any such authority, central bank or comparable agency, has relating generically to loans of the category applicable to the Loan, or would have (c) there shall occur any change after the effect date in the basis of reducing taxation of payments to Bank of any amount owing to the Bank hereunder (except for a change in the rate of taxation on the overall net income of Bank), and the result of any event referred to in subsection (a), (b) or (c) above shall be to increase the cost to Bank of making or maintaining the Loan or to reduce the rate of return on capital with respect to the capital of such Liquidity Bank or such corporation as a consequence of the Liquidity Commitment or its obligations hereunder or under any participation agreement Loan to a level below that which such Liquidity Bank or such corporation the Loan could have achieved but for such adoption, change or compliance (taking into consideration the policies of such Liquidity Bank or such corporation and, with respect to capital adequacy) by an amount deemed by such Liquidity Bank to be material, then from time to timetaking into consideration Bank's internal policies with respect thereto), then, within ten (10) Business Days after 30 days of demand by such Liquidity Bank, BAFC Bank (which shall be obligated to pay or cause to be paid to such Liquidity Bank such additional amount or amounts as will compensate such Liquidity Bank for such reduction. Each Liquidity Bank shall give BAFC and the Administrative Agent notice made within a reasonable time of such Liquidity Bank having actual knowledge 180 days of the occurrence of any such event that will entitle the Liquidity referred to in clause (a), (b) and (c) above), Borrower shall pay to Bank to claim the payment of additional amounts under this SUBSECTION 4.05(C). Notwithstanding the foregoing, BAFC shall not be required to pay any Liquidity Bank, as applicable, such additional amounts to the extent such amounts relate to periods prior to one hundred and twenty (120) days of BAFC's receipt of such demand; PROVIDED that, if such change in law giving rise to such reduction is retroactive, then the one hundred and twenty (120) day period which shall be extended sufficient to include the period compensate Bank for such increased cost, tax or reduced rate of retroactive effect thereof.
(d) If any Liquidity Bank return, together with interest on its own behalf makes a demand for amounts owed under this SECTION 4.05, BAFC shall have the right, if no event then exists which is or with the lapse of time or notice or both would be a Mandatory Liquidation Event, within ninety (90) days of such amount from the date of such demand, fifteen days after the date Borrower receives the statement(s) referred to remove such Liquidity Bank (in the "AFFECTED PERSON") and to designate another lender (the "REPLACEMENT PERSON") reasonably acceptable to the Administrative Agent and meeting the requirements of SECTION 11.05 hereof to purchase the Affected Person's outstanding Liquidity Loans and to assume the Affected Person's obligations under this Agreement; PROVIDED that increased costs incurred by such Liquidity Bank prior next sentence to the date Borrower pays such increased cost, tax or reduced rate of its replacement return in full at the Prime Rate. At the request of Borrower, Bank shall have been paid deliver to Borrower a statement setting forth the basis for requesting such compensation and the method for determining the amount thereof. Any such statement shall be conclusive as provided in the previous paragraph; and PROVIDED FURTHER, that BAFC first receives confirmation from the Series 2000-1 Rating Agencies that such replacement will not result in the reduction or withdrawal of the rating of the Commercial Paper. The Affected Person agrees to sell to the Replacement Person its outstanding Liquidity Loans (at par, with accrued interest through the date of purchase, in immediately available funds) and to delegate to the Replacement Person its obligations to BAFC and its future obligations to the Administrative Agent under this Agreement. Upon such sale and delegation by the Affected Person and the purchase and assumption 17 by the Replacement Person, and compliance with the provisions of SECTION 11.05 hereof, the Affected Person shall cease to be a Liquidity Bank hereunder and the Replacement Person shall become a Liquidity Bank under this Agreement. Each Affected Person shall continue to be entitled to receive from BAFC its share of interest, fees, costs and other sums which have not been assigned by the Affected Person to the Replacement Person.
(e) Notwithstanding anything in this Agreement to the contrary, it is understood that any Participant shall be entitled to the payment amounts of increased costs under this SECTION 4.05 and SECTION 4.06 hereof to cost in funding or maintaining the extent such increased costs would have been required to be paid had no participating interest been soldLoan absent manifest error.
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