ANY REQUEST OR
DIRECTIVE (WHETHER OR NOT HAVING THE FORCE OF LAW) FROM ANY CENTRAL BANK OR
OTHER FINANCIAL, MONETARY OR OTHER AUTHORITY, SHALL:
(A)
SUBJECT BRASCAN TO ANY TAX OF ANY KIND WHATSOEVER WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER DOCUMENT OR CHANGE THE BASIS OF TAXATION OF PAYMENTS
TO BRASCAN OF PRINCIPAL, FEES, INTEREST OR ANY OTHER AMOUNT PAYABLE HEREUNDER OR
UNDER ANY OTHER DOCUMENTS (EXCEPT FOR CHANGES IN THE RATE OF TAX ON THE OVERALL
NET INCOME OF BRASCAN BY THE JURISDICTION IN WHICH IT MAINTAINS ITS PRINCIPAL
OFFICE);
(B)
IMPOSE, MODIFY OR HOLD APPLICABLE ANY RESERVE, SPECIAL DEPOSIT,
ASSESSMENT OR SIMILAR REQUIREMENT AGAINST ASSETS HELD BY, OR DEPOSITS IN OR FOR
THE ACCOUNT OF, ADVANCES OR LOANS BY, OR OTHER CREDIT EXTENDED BY, ANY OFFICE OF
BRASCAN, INCLUDING PURSUANT TO REGULATION D OF THE BOARD OF GOVERNORS OF THE
FEDERAL RESERVE SYSTEM; OR
(C)
IMPOSE ON BRASCAN OR THE LONDON INTERBANK EURODOLLAR MARKET ANY
OTHER CONDITION WITH RESPECT TO THIS AGREEMENT OR ANY OTHER DOCUMENT;
and the result of any of the foregoing is to increase the cost to Brascan of
making, renewing or maintaining its Advances hereunder by an amount that Brascan
deems to be material or to reduce the amount of any payment (whether of
principal, interest or otherwise) in respect of any of the
12
Advances by an amount that Brascan deems to be material, then, in any case
Borrower shall promptly pay Brascan, upon its demand, such additional amount as
shall compensate Brascan for such additional cost or such reduction, as the case
may be, provided that the foregoing shall not apply to increased costs which are
reflected in the Eurodollar Rate. Brascan shall certify the amount of such
additional cost or reduced amount to Borrower, and such certification shall be
conclusive absent manifest error.
3.5
BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR UNFAIR. IN THE
EVENT THAT BRASCAN SHALL HAVE DETERMINED THAT:
(A)
REASONABLE MEANS DO NOT EXIST FOR ASCERTAINING THE EURODOLLAR RATE
APPLICABLE PURSUANT TO SECTION 2.2 HEREOF FOR ANY ADVANCE; OR
(B)
DOLLAR DEPOSITS IN THE RELEVANT AMOUNT AND FOR THE RELEVANT
MATURITY ARE NOT AVAILABLE IN THE LONDON INTERBANK EURODOLLAR MARKET, WITH
RESPECT TO AN OUTSTANDING EURODOLLAR RATE LOAN OR A PROPOSED EURODOLLAR RATE
LOAN,
(C)
THEN BRASCAN SHALL GIVE BORROWER PROMPT WRITTEN, TELEPHONIC OR
TELEGRAPHIC NOTICE OF SUCH DETERMINATION EITHER ON THE DATE BRASCAN RECEIVES THE
NOTICE OF BORROWING OR ON THE DATE OF THE PROPOSED BORROWING. IF SUCH NOTICE IS
GIVEN, (I) ANY SUCH REQUESTED EURODOLLAR RATE LOAN SHALL BE MADE ACCORDING TO
BRASCAN'S COST OF FUNDS FOR SUCH ADVANCES PLUS 4.00%. UNTIL SUCH NOTICE HAS BEEN
WITHDRAWN, BRASCAN SHALL HAVE NO OBLIGATION TO MAKE EURODOLLAR RATE LOANS OR
MAINTAIN OUTSTANDING EURODOLLAR RATE LOANS.
IV.
REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants as follows:
4.1
AUTHORITY. BORROWER HAS FULL POWER, AUTHORITY AND LEGAL RIGHT TO
ENTER INTO THIS AGREEMENT AND THE OTHER DOCUMENTS AND TO PERFORM ALL ITS
RESPECTIVE OBLIGATIONS HEREUNDER AND THEREUNDER. THIS