CONSIDERATION SUCH LENDER'S
POLICIES WITH RESPECT TO CAPITAL ADEQUACY IMMEDIATELY BEFORE SUCH ADOPTION,
CHANGE OR COMPLIANCE AND ASSUMING THE FULL UTILIZATION OF SUCH LENDER'S CAPITAL
IMMEDIATELY BEFORE SUCH ADOPTION, CHANGE OR COMPLIANCE) OR IF ANY CHANGE IN LAW,
REGULATION, TREATY OR OFFICIAL DIRECTIVE OR THE INTERPRETATION OR APPLICATION
THEREOF BY ANY COURT OR BY ANY GOVERNMENTAL AUTHORITY CHARGED WITH THE
ADMINISTRATION THEREOF OR THE COMPLIANCE WITH ANY GUIDELINE OR REQUEST OF ANY
CENTRAL BANK OR OTHER GOVERNMENTAL AUTHORITY (WHETHER OR NOT HAVING THE FORCE OF
LAW) SUBJECTS A LENDER TO ANY TAX WITH RESPECT TO PAYMENTS OF PRINCIPAL OR
INTEREST OR ANY OTHER AMOUNTS PAYABLE HEREUNDER BY THE BORROWER OR OTHERWISE
WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY (EXCEPT FOR TAXES ON THE
OVERALL NET INCOME OF SUCH LENDER IMPOSED BY THE UNITED STATES OF AMERICA OR ANY
POLITICAL SUBDIVISION THEREOF), IN EACH CASE BY ANY AMOUNT DEEMED BY SUCH LENDER
TO BE MATERIAL, THEN SUCH LENDER SHALL PROMPTLY AFTER ITS DETERMINATION OF SUCH
OCCURRENCE NOTIFY THE BORROWER AND THE ADMINISTRATIVE AGENT THEREOF.
THE
BORROWER AGREE TO PAY TO THE ADMINISTRATIVE AGENT, FOR THE ACCOUNT OF SUCH
LENDER, AS AN ADDITIONAL FEE FROM TIME TO TIME, WITHIN 30 DAYS AFTER DEMAND BY
SUCH LENDER, SUCH AMOUNT AS SUCH LENDER CERTIFIES TO BE THE AMOUNT THAT WILL
COMPENSATE IT FOR SUCH REDUCTION.
(E)
BEFORE GIVING ANY NOTICE PURSUANT TO SECTION 4.15(A) OR MAKING ANY
DEMAND PURSUANT TO SECTION 4.15(C) OR (D), EACH LENDER AGREES TO USE ITS BEST
EFFORTS (CONSISTENT WITH ITS INTERNAL POLICY AND LEGAL AND REGULATORY
RESTRICTIONS) TO DESIGNATE A DIFFERENT LENDING OFFICE IF THE MAKING OF SUCH A
DESIGNATION WOULD AVOID THE NEED FOR SUCH NOTICE OR DEMAND, OR REDUCE THE AMOUNT
OF SUCH INCREASED COST OR REDUCTION IN RETURN AND WOULD NOT, IN THE REASONABLE
JUDGMENT OF SUCH LENDER, BE OTHERWISE DISADVANTAGEOUS TO SUCH LENDER.
(F)
A CERTIFICATE OF A LENDER CLAIMING COMPENSATION UNDER SECTION
4.15(C) OR (D) SHALL BE CONCLUSIVE IN THE ABSENCE OF MANIFEST ERROR.
SUCH
CERTIFICATE SHALL SET FORTH THE NATURE OF THE OCCURRENCE GIVING RISE TO SUCH
COMPENSATION, THE ADDITIONAL AMOUNT OR AMOUNTS TO BE PAID
54
TO IT HEREUNDER AND THE METHOD BY WHICH SUCH AMOUNTS WERE DETERMINED.
IN
DETERMINING SUCH AMOUNT, A LENDER MAY USE ANY REASONABLE AVERAGING AND
ATTRIBUTION METHODS.
SECTION 4.16
CASH COLLATERAL ACCOUNT.
(A)
CASH COLLATERAL ACCOUNT.
THE BORROWER SHALL ESTABLISH A CASH
COLLATERAL ACCOUNT IN WHICH TO DEPOSIT COLLATERAL CONSISTING OF CASH OR CASH
EQUIVALENTS FROM TIME TO TIME,
(I)
REPRESENTING PAYMENTS RECEIVED PURSUANT TO SECTION 2.3(B) OR (C)
OR SECTION 4.15 IN EXCESS OF THEN OUTSTANDING REVOLVING CREDIT LOANS OR ON
ACCOUNT OF LIBOR RATE LOANS WHICH WOULD OTHERWISE RESULT IN REPAYMENT OF SUCH
LOANS PRIOR TO THE END OF THE INTEREST PERIOD APPLICABLE THERETO,
(II)
WITH RESPECT TO LETTER OF CREDIT OBLIGATIONS (X) AT THE REQUEST
OF THE ADMINISTRATIVE AGENT UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, OR (Y)
FOR THE PURPOSES SET FORTH IN SECTION 4.6 IN THE EVENT OF TERMINATION OF