CALCULATED BY REFERENCE TO THE CP RATE; PROVIDED THAT THE AGENT MAY
DETERMINE, FROM TIME TO TIME, IN ITS SOLE DISCRETION, THAT FUNDING SUCH NET
INVESTMENT BY MEANS OF ONE OR MORE SUCH RATE PERIODS OR RATE TYPES IS NOT
POSSIBLE OR IS NOT DESIRABLE FOR ANY REASON.
(B)
NET INVESTMENT FUNDED PURSUANT TO PROGRAM SUPPORT AGREEMENT.
EACH
RATE PERIOD APPLICABLE TO ANY TRANCHE FUNDED PURSUANT TO A PROGRAM SUPPORT
AGREEMENT SHALL BE A PERIOD, SELECTED BY THE AGENT, AND DISCOUNT WITH RESPECT
THERETO SHALL BE CALCULATED BY REFERENCE TO THE ALTERNATE RATE.
(C)
OFFSHORE RATE PROTECTION; ILLEGALITY.
(I)
IF THE AGENT IS UNABLE TO OBTAIN ON A
TIMELY BASIS THE INFORMATION NECESSARY TO DETERMINE THE OFFSHORE RATE FOR ANY
PROPOSED RATE PERIOD, THEN
(A)
the Agent shall forthwith notify the Lender or the Bank Investors,
as applicable, and the Borrower that the Offshore Rate cannot be determined for
such Rate Period, and
(B)
while such circumstances exist, the Agent shall not allocate any
Tranches with respect to Loans made during such period or reallocate any
6
Tranches allocated to any then existing Rate Period ending during such period,
to a Rate Period with respect to which Discount is calculated by reference to
the Offshore Rate.
Discount related to any such Tranches shall be calculated
according to the Base Rate while such circumstances exist.
(II)
IF, WITH RESPECT TO ANY OUTSTANDING RATE
PERIOD, THE LENDER OR ANY OF THE BANK INVESTORS ON BEHALF OF WHICH THE AGENT
HOLDS ANY TRANCHE NOTIFIES THE AGENT THAT IT IS UNABLE TO OBTAIN MATCHING
DEPOSITS IN THE LONDON INTERBANK MARKET TO FUND ITS PURCHASE OR MAINTENANCE OF
SUCH TRANCHE OR THAT THE OFFSHORE RATE APPLICABLE TO SUCH TRANCHE WILL NOT
ADEQUATELY REFLECT THE COST TO THE PERSON OF FUNDING OR MAINTAINING SUCH TRANCHE
FOR SUCH RATE PERIOD, THEN (A) THE AGENT SHALL FORTHWITH SO NOTIFY THE BORROWER,
THE LENDER AND THE BANK INVESTORS AND (B) UPON SUCH NOTICE AND THEREAFTER WHILE
SUCH CIRCUMSTANCES EXIST, THE AGENT SHALL NOT ALLOCATE ANY OTHER TRANCHE WITH
RESPECT TO INVESTMENTS MADE DURING SUCH PERIOD OR REALLOCATE ANY TRANCHE
ALLOCATED TO ANY RATE PERIOD ENDING DURING SUCH PERIOD, TO A RATE PERIOD WITH
RESPECT TO WHICH DISCOUNT IS CALCULATED BY REFERENCE TO THE OFFSHORE RATE.
DISCOUNT RELATED TO ANY SUCH TRANCHES SHALL BE CALCULATED ACCORDING TO THE BASE
RATE WHILE SUCH CIRCUMSTANCES EXIST.
(III)
NOTWITHSTANDING ANY OTHER PROVISION OF THIS
LOAN AGREEMENT, IF THE LENDER OR ANY OF THE BANK INVESTORS, AS APPLICABLE, SHALL
NOTIFY THE AGENT THAT SUCH PERSON HAS DETERMINED (OR HAS BEEN NOTIFIED BY ANY
PROGRAM SUPPORT PROVIDER) THAT THE INTRODUCTION OF OR ANY CHANGE IN OR IN THE
INTERPRETATION OF ANY LAW MAKES IT UNLAWFUL (EITHER FOR THE LENDER, SUCH BANK
INVESTOR, OR SUCH PROGRAM SUPPORT PROVIDER, AS APPLICABLE), OR ANY CENTRAL BANK
OR OTHER GOVERNMENTAL AUTHORITY ASSERTS THAT IT IS UNLAWFUL, FOR THE LENDER,
SUCH BANK INVESTOR OR SUCH PROGRAM SUPPORT PROVIDER, AS APPLICABLE, TO FUND OR
MAINTAIN ANY TRANCHE ACCRUING DISCOUNT CALCULATED