BE FINAL, CONCLUSIVE
AND BINDING UPON ALL PARTIES) THE INTEREST RATE THAT SHALL APPLY TO THE LIBOR
ADVANCES FOR WHICH AN INTEREST RATE IS THEN BEING DETERMINED FOR THE APPLICABLE
INTEREST PERIOD AND SHALL PROMPTLY GIVE NOTICE THEREOF (IN WRITING OR BY
TELEPHONE CONFIRMED IN WRITING) TO BORROWER.
(B)
INABILITY TO DETERMINE APPLICABLE INTEREST RATE.
IN THE EVENT THAT
BANK SHALL HAVE DETERMINED IN GOOD FAITH (WHICH DETERMINATION SHALL, ABSENT
MANIFEST ERROR, BE FINAL AND CONCLUSIVE AND BINDING UPON ALL PARTIES HERETO), ON
ANY INTEREST RATE DETERMINATION DATE WITH RESPECT TO ANY LIBOR ADVANCE, THAT BY
REASON OF CIRCUMSTANCES AFFECTING THE LONDON INTERBANK MARKET ADEQUATE AND FAIR
MEANS DO NOT EXIST FOR ASCERTAINING THE INTEREST RATE APPLICABLE TO SUCH ADVANCE
ON THE BASIS PROVIDED FOR IN THE DEFINITION OF LIBOR, BANK SHALL ON SUCH DATE
GIVE NOTICE (BY FACSIMILE OR BY TELEPHONE CONFIRMED IN WRITING) TO BORROWER OF
SUCH DETERMINATION, WHEREUPON (I) NO ADVANCES MAY BE MADE AS, OR CONVERTED TO,
LIBOR ADVANCES UNTIL SUCH TIME AS BANK NOTIFIES BORROWER THAT THE CIRCUMSTANCES
GIVING RISE TO SUCH NOTICE NO LONGER EXIST, AND (II) ANY NOTICE OF BORROWING OR
NOTICE OF CONVERSION/CONTINUATION GIVEN BY BORROWER WITH RESPECT TO ADVANCES IN
RESPECT OF WHICH SUCH DETERMINATION WAS MADE SHALL BE DEEMED TO BE RESCINDED BY
BORROWER.
6
(C)
COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST PERIODS.
BORROWER SHALL COMPENSATE BANK, UPON WRITTEN REQUEST BY BANK (WHICH REQUEST
SHALL SET FORTH THE MANNER AND METHOD OF COMPUTING SUCH COMPENSATION), FOR ALL
REASONABLE LOSSES, EXPENSES AND LIABILITIES, IF ANY (INCLUDING ANY INTEREST PAID
BY BANK TO LENDERS OF FUNDS BORROWED BY IT TO MAKE OR CARRY ITS LIBOR ADVANCES
AND ANY LOSS, EXPENSE OR LIABILITY INCURRED BY BANK IN CONNECTION WITH THE
LIQUIDATION OR RE-EMPLOYMENT OF SUCH FUNDS) SUCH THAT BANK MAY INCUR: (I) IF FOR
ANY REASON (OTHER THAN A DEFAULT BY BANK OR DUE TO ANY FAILURE OF BANK TO FUND
LIBOR ADVANCES DUE TO IMPRACTICABILITY OR ILLEGALITY UNDER SECTIONS 3.7(D) AND
3.7(E)) A BORROWING OR A CONVERSION TO OR CONTINUATION OF ANY LIBOR ADVANCE DOES
NOT OCCUR ON A DATE SPECIFIED IN A NOTICE OF BORROWING OR A NOTICE OF
CONVERSION/CONTINUATION, AS THE CASE MAY BE, OR (II) IF ANY PRINCIPAL PAYMENT OR
ANY CONVERSION OF ANY OF ITS LIBOR ADVANCES OCCURS ON A DATE PRIOR TO THE LAST
DAY OF AN INTEREST PERIOD APPLICABLE TO THAT ADVANCE.
(D)
ASSUMPTIONS CONCERNING FUNDING OF LIBOR ADVANCES.
CALCULATION OF ALL
AMOUNTS PAYABLE TO BANK UNDER THIS SECTION 3.6 AND UNDER SECTION 3.4 SHALL BE
MADE AS THOUGH BANK HAD ACTUALLY FUNDED EACH OF ITS RELEVANT LIBOR ADVANCES
THROUGH THE PURCHASE OF A EURODOLLAR DEPOSIT BEARING INTEREST AT THE RATE
OBTAINED PURSUANT TO THE DEFINITION OF LIBOR RATE IN AN AMOUNT EQUAL TO THE
AMOUNT OF SUCH LIBOR ADVANCE AND HAVING A MATURITY COMPARABLE TO THE RELEVANT
INTEREST PERIOD; PROVIDED, HOWEVER, THAT BANK MAY FUND EACH OF ITS LIBOR
ADVANCES IN ANY MANNER IT SEES FIT AND THE FOREGOING ASSUMPTIONS SHALL BE
UTILIZED