IMPOSED BY CANADA OR IRELAND TO THE APPROPRIATE
GOVERNMENTAL AUTHORITY.
NOTWITHSTANDING THE FOREGOING, (A) THE SUBSIDIARY
BORROWERS SHALL RETAIN PRIMARY RESPONSIBILITY FOR ASCERTAINING THE REQUIREMENTS
OF APPLICABLE LAW AND PROVIDING TO THE LENDERS THE WRITTEN NOTICE DESCRIBED IN
THE FIRST SENTENCE OF THIS SECTION 2.8B(V), AND (B) NO FAILURE BY THE
ADMINISTRATIVE AGENT TO MEET ANY OBLIGATIONS UNDER THIS SECTION 2.8B(V) SHALL
OPERATE TO EXCUSE ANY SUBSIDIARY BORROWER FROM ITS OBLIGATIONS TO THE LENDERS
UNDER THIS SECTION 2.8B(V).
C.
CAPITAL ADEQUACY ADJUSTMENT.
IN THE EVENT
THAT ANY LENDER SHALL HAVE DETERMINED THAT THE ADOPTION, EFFECTIVENESS, PHASE-IN
OR APPLICABILITY AFTER THE EFFECTIVE DATE OF ANY LAW, RULE OR REGULATION (OR ANY
PROVISION THEREOF) REGARDING CAPITAL ADEQUACY, OR ANY CHANGE THEREIN AFTER THE
EFFECTIVE DATE OR 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 SUCH LENDER (OR ITS
APPLICABLE LENDING OFFICE) WITH ANY GUIDELINE, REQUEST OR DIRECTIVE REGARDING
CAPITAL ADEQUACY (WHETHER OR NOT HAVING THE FORCE OF LAW) OF ANY SUCH
GOVERNMENTAL AUTHORITY, CENTRAL BANK OR COMPARABLE AGENCY ISSUED AFTER THE
EFFECTIVE DATE, HAS OR WOULD HAVE THE EFFECT OF REDUCING THE RATE OF RETURN ON
THE CAPITAL OF SUCH LENDER OR ANY CORPORATION CONTROLLING SUCH LENDER AS A
CONSEQUENCE OF, OR WITH REFERENCE TO, SUCH LENDER'S LOANS OR COMMITMENT, OR
PARTICIPATIONS THEREIN OR OTHER OBLIGATIONS HEREUNDER WITH RESPECT TO THE LOANS
TO A LEVEL BELOW THAT WHICH SUCH LENDER OR SUCH CONTROLLING CORPORATION COULD
HAVE ACHIEVED BUT FOR SUCH ADOPTION, EFFECTIVENESS, PHASE-IN, APPLICABILITY,
CHANGE OR COMPLIANCE (TAKING INTO CONSIDERATION THE POLICIES OF SUCH LENDER OR
SUCH CONTROLLING CORPORATION WITH REGARD TO CAPITAL ADEQUACY), THEN FROM TIME TO
TIME, THE CREDIT PARTIES SHALL PAY TO SUCH LENDER SUCH ADDITIONAL AMOUNT OR
AMOUNTS AS WILL COMPENSATE SUCH LENDER OR SUCH CONTROLLING CORPORATION ON AN
AFTER-TAX BASIS FOR SUCH REDUCTION.
SUCH LENDER SHALL DELIVER TO THE CREDIT
PARTIES (WITH A COPY TO THE ADMINISTRATIVE AGENT) A WRITTEN STATEMENT, SETTING
FORTH IN REASONABLE DETAIL THE BASIS FOR, AND CALCULATION IN REASONABLE DETAIL
OF, THE ADDITIONAL AMOUNTS OWED TO THE LENDER UNDER THIS SECTION 2.8C, WHICH
STATEMENT SHALL BE CONCLUSIVE AND BINDING UPON ALL PARTIES HERETO ABSENT
MANIFEST ERROR.
42
2.9
Special Provisions Governing LIBOR Rate Loans.
Notwithstanding any other provision of this Agreement to the contrary, the
following provisions shall govern with respect to LIBOR Rate Loans as to the
matters covered:
A.
INABILITY TO DETERMINE APPLICABLE INTEREST
RATE.
IN THE EVENT THAT THE ADMINISTRATIVE AGENT SHALL HAVE DETERMINED (WHICH
DETERMINATION SHALL BE FINAL AND CONCLUSIVE AND BINDING UPON ALL PARTIES
HERETO), ON ANY INTEREST RATE DETERMINATION DATE WITH RESPECT TO ANY BORROWING
OF LIBOR RATE LOANS, THAT BY REASON OF CIRCUMSTANCES AFFECTING THE INTERBANK
LIBOR MARKET ADEQUATE AND FAIR MEANS DO NOT EXIST FOR ASCERTAINING THE INTEREST
RATE APPLICABLE TO SUCH LOANS ON THE BASIS PROVIDED FOR IN THE DEFINITION OF
LIBOR RATE, THE ADMINISTRATIVE AGENT SHALL ON SUCH DATE GIVE NOTICE (BY
FACSIMILE OR BY