DAYS PRIOR TO THE
DATE OF LENDER'S DEMAND THEREFOR.
"CHANGE" MEANS (I) ANY CHANGE AFTER THE DATE
THE LENDER BECAME A PARTY TO THIS AGREEMENT IN THE "RISK-BASED CAPITAL
GUIDELINES" (AS DEFINED BELOW) EXCLUDING, FOR THE AVOIDANCE OF DOUBT, THE EFFECT
OF ANY PHASING
41
IN OF SUCH RISK-BASED CAPITAL GUIDELINES OR ANY OTHER CAPITAL REQUIREMENTS
PASSED PRIOR TO THE DATE HEREOF, OR (II) ANY ADOPTION OF OR CHANGE IN ANY OTHER
LAW, GOVERNMENTAL OR QUASI- GOVERNMENTAL RULE, REGULATION, POLICY, GUIDELINE,
INTERPRETATION, OR DIRECTIVE (WHETHER OR NOT HAVING THE FORCE OF LAW) AFTER THE
DATE THE LENDER BECAME A PARTY TO THIS AGREEMENT AND HAVING GENERAL
APPLICABILITY TO ALL BANKS AND FINANCIAL INSTITUTIONS WITHIN THE JURISDICTION IN
WHICH LENDER OPERATES WHICH AFFECTS THE AMOUNT OF CAPITAL REQUIRED OR EXPECTED
TO BE MAINTAINED BY LENDER OR ANY LENDING INSTALLATION OR ANY CORPORATION
CONTROLLING ANY LENDER.
"RISK- BASED CAPITAL GUIDELINES" MEANS (I) THE
RISK-BASED CAPITAL GUIDELINES IN EFFECT IN THE UNITED STATES ON THE DATE THE
LENDER BECAME A PARTY TO THIS AGREEMENT, INCLUDING TRANSITION RULES, AND
(II) THE CORRESPONDING CAPITAL REGULATIONS PROMULGATED BY REGULATORY AUTHORITIES
OUTSIDE THE UNITED STATES IMPLEMENTING THE JULY 1988 REPORT OF THE BASLE
COMMITTEE ON BANKING REGULATION AND SUPERVISORY PRACTICES ENTITLED
"INTERNATIONAL CONVERGENCE OF CAPITAL MEASUREMENTS AND CAPITAL STANDARDS,"
INCLUDING TRANSITION RULES, AND ANY AMENDMENTS TO SUCH REGULATIONS ADOPTED PRIOR
TO THE DATE THE LENDER BECAME A PARTY TO THIS AGREEMENT.
4.3
AVAILABILITY OF TYPES OF ADVANCES.
IF
(I) LENDER DETERMINES, IN THE EXERCISE OF ITS BUSINESS JUDGMENT, THAT
MAINTENANCE OF ITS FIXED-RATE RATE LOANS AT A SUITABLE LENDING INSTALLATION
WOULD VIOLATE ANY APPLICABLE LAW, RULE, REGULATION OR DIRECTIVE, WHETHER OR NOT
HAVING THE FORCE OF LAW, OR (II) THE LENDER DETERMINES THAT (X) DEPOSITS OF A
TYPE, CURRENCY OR MATURITY APPROPRIATE TO MATCH FUND FIXED-RATE LOANS ARE NOT
AVAILABLE OR (Y) THE INTEREST RATE APPLICABLE TO FIXED-RATE LOANS DOES NOT
ACCURATELY REFLECT THE COST OF MAKING OR MAINTAINING SUCH AN ADVANCE, THEN THE
LENDER SHALL SUSPEND THE AVAILABILITY OF THE AFFECTED TYPE OF ADVANCE AND, IN
THE CASE OF ANY OCCURRENCE SET FORTH IN CLAUSE (I), REQUIRE ANY ADVANCES OF THE
AFFECTED TYPE TO BE REPAID OR CONVERTED INTO ANOTHER TYPE.
4.4
FUNDING INDEMNIFICATION.
SUBJECT TO
SECTION 2.3(B), IF ANY PAYMENT OF A FIXED-RATE LOAN OCCURS ON A DATE WHICH IS
NOT THE LAST DAY OF THE APPLICABLE INTEREST PERIOD, WHETHER BECAUSE OF
ACCELERATION, PREPAYMENT, OR OTHERWISE, OR A FIXED-RATE LOAN IS NOT MADE ON THE
DATE SPECIFIED BY THE BORROWER FOR ANY REASON OTHER THAN DEFAULT BY THE LENDER,
THE BORROWER SHALL INDEMNIFY LENDER FOR ANY LOSS OR COST INCURRED BY IT
RESULTING THEREFROM, INCLUDING, WITHOUT LIMITATION, ANY LOSS OR COST IN
LIQUIDATING OR EMPLOYING DEPOSITS ACQUIRED TO FUND OR MAINTAIN THE FIXED-RATE
LOAN.
4.5
LENDER STATEMENTS; SURVIVAL OF INDEMNITY.
IF REASONABLY POSSIBLE, LENDER SHALL DESIGNATE AN ALTERNATE LENDING INSTALLATION
WITH RESPECT TO ITS FIXED-RATE LOANS TO REDUCE ANY LIABILITY OF THE BORROWER TO
LENDER UNDER SECTION 2.14(E) OR SECTIONS 4.1 AND 4.2 OR