TELEPHONE CONFIRMED IN WRITING) TO THE CREDIT PARTIES AND EACH
LENDER OF SUCH DETERMINATION, WHEREUPON (I) NO LOANS MAY BE MADE AS, OR
CONVERTED TO, LIBOR RATE LOANS UNTIL SUCH TIME AS THE ADMINISTRATIVE AGENT
NOTIFIES THE CREDIT PARTIES AND THE LENDERS THAT THE CIRCUMSTANCES GIVING RISE
TO SUCH NOTICE NO LONGER EXIST, AND (II) ANY NOTICE OF BORROWING OR
CONVERSION/CONTINUATION NOTICE GIVEN BY ANY CREDIT PARTY WITH RESPECT TO THE
LOANS IN RESPECT OF WHICH SUCH DETERMINATION WAS MADE SHALL BE DEEMED TO BE
RESCINDED BY SUCH CREDIT PARTY.
B.
ILLEGALITY OR IMPRACTICABILITY OF LIBOR
RATE LOANS.
IN THE EVENT THAT ON ANY DATE ANY LENDER SHALL HAVE DETERMINED
(WHICH DETERMINATION SHALL BE FINAL AND CONCLUSIVE AND BINDING UPON ALL PARTIES
HERETO BUT SHALL BE MADE ONLY AFTER CONSULTATION WITH CREDIT PARTIES AND THE
ADMINISTRATIVE AGENT) THAT THE MAKING, MAINTAINING OR CONTINUATION OF ITS LIBOR
RATE LOANS IN DOLLARS OR ANY ALTERNATIVE CURRENCY (I) HAS BECOME UNLAWFUL AS A
RESULT OF COMPLIANCE BY SUCH LENDER IN GOOD FAITH WITH ANY LAW, TREATY,
GOVERNMENTAL RULE, REGULATION, GUIDELINE OR ORDER (OR WOULD CONFLICT WITH ANY
SUCH TREATY, GOVERNMENTAL RULE, REGULATION, GUIDELINE OR ORDER NOT HAVING THE
FORCE OF LAW EVEN THOUGH THE FAILURE TO COMPLY THEREWITH WOULD NOT BE UNLAWFUL)
OR (II) HAS BECOME IMPRACTICABLE, OR WOULD CAUSE SUCH LENDER MATERIAL HARDSHIP,
AS A RESULT OF CONTINGENCIES OCCURRING AFTER THE DATE OF THIS AGREEMENT WHICH
MATERIALLY AND ADVERSELY AFFECT THE INTERBANK LIBOR MARKET OR THE POSITION OF
SUCH LENDER IN THAT MARKET, THEN, AND IN ANY SUCH EVENT, SUCH LENDER SHALL BE AN
"AFFECTED LENDER" AND IT SHALL ON THAT DAY GIVE NOTICE (BY FACSIMILE OR BY
TELEPHONE CONFIRMED IN WRITING) TO THE CREDIT PARTIES AND THE ADMINISTRATIVE
AGENT OF SUCH DETERMINATION (WHICH NOTICE THE ADMINISTRATIVE AGENT SHALL
PROMPTLY TRANSMIT TO EACH OTHER LENDER).
THEREAFTER (A) (I) IF SUCH LIBOR RATE
LOAN IS DENOMINATED IN DOLLARS, IT SHALL BE CONVERTED INTO A BASE RATE LOAN AND
(II) IF SUCH LIBOR RATE LOAN IS DENOMINATED IN ANY ALTERNATIVE CURRENCY, IT
SHALL BE EXCHANGED INTO AN EQUIVALENT AMOUNT OF DOLLARS AND BE CONVERTED INTO A
BASE RATE LOAN AND (B) THE OBLIGATION OF THE LENDERS TO MAKE LIBOR RATE LOANS IN
THE AFFECTED CURRENCY OR TO CONVERT LOANS INTO LIBOR RATE LOANS SHALL BE
SUSPENDED UNTIL THE ADMINISTRATIVE AGENT SHALL NOTIFY THE BORROWER AND THE
LENDERS THAT THE CIRCUMSTANCES CAUSING SUCH SUSPENSION NO LONGER EXIST.
C.
COMPENSATION FOR BREAKAGE.
THE CREDIT
PARTIES SHALL COMPENSATE EACH LENDER UPON WRITTEN REQUEST BY SUCH LENDER (WHICH
REQUEST SHALL SET FORTH THE BASIS FOR REQUESTING SUCH AMOUNTS AND A CALCULATION
THEREOF IN REASONABLE DETAIL) FOR ALL REASONABLE LOSSES, EXPENSES AND
LIABILITIES (INCLUDING ANY INTEREST PAID BY SUCH LENDER TO LENDERS OF FUNDS
BORROWED BY IT TO MAKE OR CARRY ITS LIBOR RATE LOANS AND ANY LOSS, EXPENSE OR
LIABILITY SUSTAINED BY SUCH LENDER IN CONNECTION WITH THE LIQUIDATION OR
RE-EMPLOYMENT OF SUCH FUNDS, BUT EXCLUDING LOST PROFITS)
43
WHICH THAT LENDER MAY SUSTAIN:
(I) IF FOR