LENDERS, AND THE CALCULATION, REPORTING, WITHHOLDING
AND REMITTING OF ANY TAXES 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
41
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.
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