HAVE ACHIEVED BUT FOR SUCH ADOPTION, CHANGE OR COMPLIANCE
(TAKING INTO CONSIDERATION THE FUNDING BANK'S OR LENDER'S OR ISSUING BANK'S
POLICIES WITH RESPECT TO CAPITAL ADEQUACY) BY AN AMOUNT DEEMED BY SUCH LENDER OR
ISSUING BANK TO BE MATERIAL, AND THE RESULT OF ANY OF THE FOREGOING EVENTS
DESCRIBED IN CLAUSES (I), (II) OR (III) IS OR RESULTS IN AN INCREASE IN THE COST
TO ANY LENDER OR ISSUING BANK OF FUNDING OR MAINTAINING THE LOANS, THE LETTERS
OF CREDIT OR ITS COMMITMENT, THEN BORROWERS AND GUARANTORS SHALL FROM TIME TO
TIME UPON DEMAND BY AGENT PAY TO AGENT ADDITIONAL AMOUNTS SUFFICIENT TO
INDEMNIFY SUCH LENDER OR ISSUING BANK, AS THE CASE MAY BE, AGAINST SUCH
INCREASED COST ON AN AFTER-TAX BASIS (AFTER TAKING INTO ACCOUNT APPLICABLE
DEDUCTIONS AND CREDITS IN RESPECT OF THE AMOUNT INDEMNIFIED).
A CERTIFICATE AS
TO THE AMOUNT OF SUCH INCREASED COST SHALL BE SUBMITTED TO ADMINISTRATIVE
BORROWER BY AGENT OR THE APPLICABLE LENDER AND SHALL BE CONCLUSIVE, ABSENT
MANIFEST ERROR.
(B)
IF PRIOR TO THE FIRST DAY OF ANY INTEREST PERIOD, (I)
AGENT SHALL HAVE DETERMINED IN GOOD FAITH (WHICH DETERMINATION SHALL BE
CONCLUSIVE AND BINDING UPON BORROWERS AND
42
GUARANTORS) THAT, BY REASON OF CIRCUMSTANCES AFFECTING THE RELEVANT MARKET,
ADEQUATE AND REASONABLE MEANS DO NOT EXIST FOR ASCERTAINING THE ADJUSTED
EURODOLLAR RATE FOR SUCH INTEREST PERIOD, (II) AGENT HAS RECEIVED NOTICE FROM
THE REQUIRED LENDERS THAT THE ADJUSTED EURODOLLAR RATE DETERMINED OR TO BE
DETERMINED FOR SUCH INTEREST PERIOD WILL NOT ADEQUATELY AND FAIRLY REFLECT THE
COST TO LENDERS OF MAKING OR MAINTAINING EURODOLLAR RATE LOANS DURING SUCH
INTEREST PERIOD, OR (III) DOLLAR DEPOSITS IN THE PRINCIPAL AMOUNTS OF THE
EURODOLLAR RATE LOANS TO WHICH SUCH INTEREST PERIOD IS TO BE APPLICABLE ARE NOT
GENERALLY AVAILABLE IN THE LONDON INTERBANK MARKET, AGENT SHALL GIVE TELECOPY OR
TELEPHONIC NOTICE THEREOF TO ADMINISTRATIVE BORROWER AS SOON AS PRACTICABLE
THEREAFTER, AND WILL ALSO GIVE PROMPT WRITTEN NOTICE TO ADMINISTRATIVE BORROWER
WHEN SUCH CONDITIONS NO LONGER EXIST.
IF SUCH NOTICE IS GIVEN (A) ANY
EURODOLLAR RATE LOANS REQUESTED TO BE MADE ON THE FIRST DAY OF SUCH INTEREST
PERIOD SHALL BE MADE AS PRIME RATE LOANS, (B) ANY LOANS THAT WERE TO HAVE BEEN
CONVERTED ON THE FIRST DAY OF SUCH INTEREST PERIOD TO OR CONTINUED AS EURODOLLAR
RATE LOANS SHALL BE CONVERTED TO OR CONTINUED AS PRIME RATE LOANS AND (C) EACH
OUTSTANDING EURODOLLAR RATE LOAN SHALL BE CONVERTED, ON THE LAST DAY OF THE
THEN-CURRENT INTEREST PERIOD THEREOF, TO PRIME RATE LOANS.
UNTIL SUCH NOTICE
HAS BEEN WITHDRAWN BY AGENT, NO FURTHER EURODOLLAR RATE LOANS SHALL BE MADE OR
CONTINUED AS SUCH, NOR SHALL ANY BORROWER (OR ADMINISTRATIVE BORROWER ON BEHALF
OF ANY BORROWER) HAVE THE RIGHT TO CONVERT PRIME RATE LOANS TO EURODOLLAR RATE
LOANS.
(C)
NOTWITHSTANDING ANY OTHER PROVISION HEREIN, IF THE
ADOPTION OF OR ANY CHANGE IN ANY LAW, TREATY, RULE OR REGULATION OR FINAL,
NON-APPEALABLE DETERMINATION OF AN ARBITRATOR OR A COURT OR OTHER GOVERNMENTAL
AUTHORITY OR IN THE INTERPRETATION OR