OR IN PART ON ANY
DATE OTHER THAN AN INTEREST PAYMENT DATE (WHETHER THAT REPAYMENT IS MADE
PURSUANT TO ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER RELATED DOCUMENT
OR IS THE RESULT OF ACCELERATION, BY OPERATION OF LAW OR OTHERWISE); (II) THE
BORROWER SHALL DEFAULT IN PAYMENT WHEN DUE OF THE PRINCIPAL AMOUNT OF OR
INTEREST ON ANY LIBOR RATE ADVANCE; (III) THE BORROWER SHALL DEFAULT IN MAKING
ANY BORROWING OF LIBOR RATE ADVANCES AFTER THE BORROWER HAS GIVEN NOTICE
REQUESTING THE SAME IN ACCORDANCE HEREWITH (INCLUDING ANY FAILURE TO SATISFY
CONDITIONS PRECEDENT TO THE MAKING OF ANY LIBOR RATE ADVANCES); OR (IV) THE
BORROWER SHALL FAIL TO MAKE ANY PREPAYMENT OF A LIBOR RATE ADVANCE AFTER THE
BORROWER HAS GIVEN A NOTICE THEREOF IN ACCORDANCE HEREWITH, THEN, IN ANY SUCH
CASE, THE BORROWER SHALL INDEMNIFY AND HOLD HARMLESS EACH LENDER FROM AND
AGAINST ALL LOSSES, COSTS AND EXPENSES RESULTING FROM OR ARISING FROM ANY OF THE
FOREGOING (ANY SUCH LOSS, COST OR EXPENSE, "BREAKAGE COSTS").
SUCH
INDEMNIFICATION SHALL INCLUDE ANY LOSS (INCLUDING LOSS OF MARGIN) OR EXPENSE
ARISING FROM THE REEMPLOYMENT OF FUNDS OBTAINED BY IT OR FROM FEES PAYABLE TO
TERMINATE DEPOSITS FROM WHICH SUCH FUNDS WERE OBTAINED (IF ANY).
FOR THE
PURPOSE OF CALCULATING AMOUNTS PAYABLE TO A LENDER UNDER THIS SUBSECTION, EACH
LENDER SHALL BE DEEMED TO HAVE ACTUALLY FUNDED ITS RELEVANT LIBOR RATE ADVANCE
THROUGH THE PURCHASE OF A DEPOSIT BEARING INTEREST AT THE LIBOR RATE IN AN
AMOUNT EQUAL TO THE AMOUNT OF THAT LIBOR RATE ADVANCE; PROVIDED, HOWEVER, THAT
EACH LENDER MAY FUND EACH OF ITS LIBOR RATE ADVANCES IN ANY MANNER IT SEES FIT,
AND THE FOREGOING ASSUMPTION SHALL BE UTILIZED ONLY FOR THE CALCULATION OF
AMOUNTS PAYABLE UNDER THIS SUBSECTION.
THIS COVENANT SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT AND THE PAYMENT OF THE REVOLVING NOTES AND ALL
OTHER AMOUNTS PAYABLE HEREUNDER.
THE DETERMINATION BY ANY LENDER OF THE AMOUNT
OF ANY SUCH LOSS OR EXPENSE SHALL BE SET FORTH IN A WRITTEN NOTICE TO THE
BORROWER IN REASONABLE DETAIL AND SHALL BE FINAL, BINDING AND CONCLUSIVE ON THE
BORROWER (ABSENT MANIFEST ERROR) FOR ALL PURPOSES.
NOTWITHSTANDING THE
FOREGOING, THE BORROWER SHALL IN NO CASE BE LIABLE FOR ANY BREAKAGE COSTS
INCURRED PURSUANT TO CLAUSE (I) OF THE FIRST SENTENCE OF THIS SECTION 2.10 IF
THE PRINCIPAL AMOUNT OF ANY REPAYMENT OF LIBOR RATE ADVANCES MADE ON ANY DATE OF
DETERMINATION IS LESS THAN $25,000,000.
ARTICLE III.
CONDITIONS PRECEDENT
SECTION 3.01.
CONDITIONS TO EFFECTIVENESS OF AGREEMENT.
THIS AGREEMENT SHALL
NOT BE EFFECTIVE UNTIL THE DATE ON WHICH EACH OF THE FOLLOWING CONDITIONS HAVE
BEEN SATISFIED, IN
15
the sole discretion of, or waived in writing by, the Lenders and the
Administrative Agent (such date, the "Effective Date"):
(A)
FUNDING AGREEMENT; OTHER RELATED DOCUMENTS.
THIS AGREEMENT AND
(TO THE EXTENT REQUESTED BY THE LENDERS) THE NOTES SHALL HAVE BEEN DULY EXECUTED
BY, AND DELIVERED TO, THE PARTIES HERETO AND THE LENDERS AND THE ADMINISTRATIVE
AGENT SHALL HAVE RECEIVED SUCH