BORROWER AT THE
ADMINISTRATIVE AGENT'S ADDRESS SET OUT IN SECTION 9.01.
(H)
SPECIAL PROVISIONS REGARDING BA EQUIVALENT
NOTES. EACH NON-BA LENDER WILL NOT ACCEPT BANKERS' ACCEPTANCES HEREUNDER, AND
SHALL INSTEAD FROM TIME TO TIME MAKE BA EQUIVALENT LOANS TO THE BORROWER.
EACH
BA EQUIVALENT LOAN SHALL BE EVIDENCED BY A NON-INTEREST BEARING PROMISSORY NOTE
PAYABLE BY THE BORROWER IN QUESTION TO THE NON-BA LENDER SUBSTANTIALLY IN THE
FORM OF EXHIBIT C ATTACHED HERETO, WHICH WILL BE PURCHASED BY THE NON-BA
LENDER.
EACH BA EQUIVALENT NOTE SHALL BE NEGOTIABLE BY THE NON-BA LENDER
WITHOUT NOTICE TO OR THE CONSENT OF THE BORROWER, AND THE HOLDER THEREOF SHALL
BE ENTITLED TO ENFORCE SUCH BA EQUIVALENT NOTE AGAINST THE BORROWER FREE OF ANY
EQUITIES, DEFENCES OR RIGHTS OF SET-OFF THAT MAY EXIST BETWEEN THE BORROWER AND
THE NON-BA LENDER. IN THIS AGREEMENT, ALL REFERENCES TO A BA EQUIVALENT NOTE
SHALL MEAN THE LOAN EVIDENCED THEREBY IF REQUIRED BY THE CONTEXT; AND ALL
REFERENCES TO THE "ISSUANCE"
30
OF A BA EQUIVALENT NOTE BY A NON-BA LENDER AND SIMILAR EXPRESSIONS SHALL MEAN
THE MAKING OF A BA EQUIVALENT LOAN BY THE NON-BA LENDER WHICH IS EVIDENCED BY A
BA EQUIVALENT NOTE.
THE FOLLOWING PROVISIONS ARE APPLICABLE TO EACH BA
EQUIVALENT LOAN MADE BY A NON-BA LENDER TO THE BORROWER HEREUNDER:
(I)
PAYMENT OF BA EQUIVALENT NOTES. THE
BORROWER AGREES TO PROVIDE FOR EACH BA EQUIVALENT NOTE BY PAYMENT OF THE FACE
AMOUNT THEREOF TO THE ADMINISTRATIVE AGENT ON BEHALF OF THE NON-BA LENDER ON THE
MATURITY OF THE BA EQUIVALENT NOTE OR, PRIOR TO SUCH MATURITY, ON THE MATURITY
DATE; AND THE ADMINISTRATIVE AGENT SHALL REMIT THE SAID AMOUNT TO SUCH NON-BA
LENDER AND SUCH NON-BA LENDER SHALL IN TURN REMIT SUCH AMOUNT TO THE HOLDER OF
THE BA EQUIVALENT NOTE. IF THE BORROWER FAILS TO PROVIDE FOR THE PAYMENT OF THE
BA EQUIVALENT NOTE ACCORDINGLY, ANY AMOUNT NOT SO PAID SHALL BE IMMEDIATELY
PAYABLE BY THE BORROWER TO THE ADMINISTRATIVE AGENT ON BEHALF OF THE NON-BA
LENDER TOGETHER WITH INTEREST ON SUCH AMOUNT CALCULATED DAILY AND PAYABLE
MONTHLY AT THE RATE AND IN THE MANNER APPLICABLE TO PRIME RATE LOANS. THE
BORROWER AGREES NOT TO CLAIM ANY DAYS OF GRACE FOR THE PAYMENT AT MATURITY OF
ANY BA EQUIVALENT NOTE AND AGREES TO INDEMNIFY AND SAVE HARMLESS THE NON-BA
LENDER IN CONNECTION WITH ALL PAYMENTS MADE BY THE NON-BA LENDER (OR BY THE
ADMINISTRATIVE AGENT ON ITS BEHALF) PURSUANT TO BA EQUIVALENT NOTES ACCEPTED BY
THE NON-BA LENDER, TOGETHER WITH ALL REASONABLE COSTS AND EXPENSES INCURRED BY
THE NON-BA LENDER IN THIS REGARD.
THE BORROWER HEREBY WAIVES ANY DEFENCES TO
PAYMENT WHICH MIGHT OTHERWISE EXIST IF FOR ANY REASON A BA EQUIVALENT NOTE IS
HELD BY THE NON-BA LENDER FOR ITS OWN ACCOUNT AT MATURITY.
(II)
AVAILABILITY OF BA EQUIVALENT NOTES. THE
NON-BA LENDER SHALL HAVE NO OBLIGATION TO ISSUE BA EQUIVALENT NOTES DURING ANY
PERIOD IN WHICH THE BA LENDERS' OBLIGATION TO ISSUE BANKERS' ACCEPTANCES IS
SUSPENDED PURSUANT TO THE TERMS