SUCH LENDER TO BE MATERIAL, THEN, UPON DEMAND BY SUCH LENDER (OR BY
AGENT ON SUCH LENDER'S BEHALF), BORROWER SHALL PAY TO SUCH LENDER FROM TIME TO
TIME SUCH ADDITIONAL AMOUNT OR AMOUNTS AS WILL COMPENSATE SUCH LENDER OR SUCH
LENDER'S HOLDING COMPANY FOR ANY SUCH REDUCTION SUFFERED, TOGETHER WITH INTEREST
ON EACH SUCH AMOUNT FROM THE DATE DEMANDED UNTIL PAYMENT IN FULL (AFTER AS WELL
AS BEFORE JUDGMENT) THEREOF AT THE BASE RATE. EACH LENDER SHALL ENDEAVOR TO GIVE
BORROWER NOTICE OF ITS INTENTION TO REQUIRE COMPENSATION UNDER THIS SECTION 3.4
WITHIN A REASONABLE TIME AFTER THE LOAN OFFICER OF SUCH LENDER WITH
RESPONSIBILITY FOR THIS AGREEMENT BECOMES AWARE OF ITS ENTITLEMENT TO SUCH
COMPENSATION UNDER THIS SECTION 3.4, BUT NO FAILURE TO GIVE ANY SUCH NOTICE
SHALL AFFECT OR RELIEVE BORROWER OF ANY OF BORROWER'S OBLIGATIONS UNDER THIS
SECTION 3.4 OR UNDER ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR RESULT IN ANY OBLIGATION OR LIABILITY OF AGENT OR ANY LENDER TO
BORROWER OR ANY OTHER PERSON.
A CERTIFICATE OF A LENDER AS TO THE AMOUNT
REQUIRED TO BE PAID BY BORROWER UNDER THIS SECTION 3.4 AND SHOWING IN REASONABLE
DETAIL THE BASIS FOR THE CALCULATION THEREOF SHALL, ABSENT MANIFEST ERROR, BE
FINAL AND CONCLUSIVE (IT BEING UNDERSTOOD THAT IN NO EVENT SHALL ANY LENDER BE
REQUIRED TO DISCLOSE IN SUCH CERTIFICATE OR OTHERWISE ANY NON-PUBLIC
INFORMATION). IN DETERMINING SUCH AMOUNT OR AMOUNTS, A LENDER MAY USE ANY METHOD
OF AVERAGING AND ATTRIBUTION AS IT (IN ITS SOLE AND ABSOLUTE DISCRETION) SHALL
DEEM APPLICABLE.
3.5
DETERMINATION OF RATE OF BORROWING.
AS SOON
AS PRACTICABLE AFTER 10:00 A.M. (NEW YORK TIME) ON EACH LIBOR INTEREST
DETERMINATION DATE, AGENT SHALL DETERMINE (WHICH DETERMINATION SHALL, ABSENT
MANIFEST ERROR, BE FINAL, CONCLUSIVE AND BINDING UPON ALL PARTIES) THE
6
RATE OF INTEREST (THE "RATE OF BORROWING") WHICH SHALL BE APPLICABLE TO THE
LIBOR LOANS FOR THE NEXT SUCCEEDING LIBOR INTEREST PERIOD AND SHALL PROMPTLY
GIVE NOTICE THEREOF IN WRITING OR BY TELEPHONE (CONFIRMED IN WRITING) TO
BORROWER AND LENDERS.
3.6
SUBSTITUTED RATE OF BORROWING.
(A)
IN THE EVENT THAT ON ANY LIBOR INTEREST
DETERMINATION DATE ANY LENDER SHALL HAVE REASONABLY DETERMINED (WHICH
DETERMINATION SHALL BE FINAL AND CONCLUSIVE AND BINDING UPON ALL PARTIES BUT,
WITH RESPECT TO THE FOLLOWING CLAUSES (I), (II)(Y) AND (II)(Z), SHALL BE MADE
ONLY AFTER CONSULTATION WITH AGENT ON THE DATE OF SUCH DETERMINATION) THAT:
(I)
BY REASON OF ANY CHANGES ARISING AFTER
THE DATE OF THIS AGREEMENT AFFECTING THE INTERBANK LIBOR MARKET OR AFFECTING THE
POSITION OF SUCH LENDER IN SUCH MARKET, ADEQUATE AND FAIR MEANS DO NOT EXIST FOR
ASCERTAINING THE APPLICABLE RATE OF BORROWING BY REFERENCE TO LIBOR WITH RESPECT
TO THE LIBOR LOANS AS TO WHICH AN INTEREST RATE DETERMINATION IS THEN BEING
MADE; OR
(II)
BY REASON OF (X) THE REQUIREMENTS OF
REGULATION D, (Y) ANY CHANGE AFTER THE DATE HEREOF IN ANY OTHER APPLICABLE LAW
OR GOVERNMENTAL RULE, REGULATION OR ORDER (OR ANY INTERPRETATION THEREOF AND
INCLUDING