ON A DAY THAT (A)
IS NOT THE PAYMENT DATE IMMEDIATELY FOLLOWING THE LAST DAY OF AN INTEREST PERIOD
WITH
60
RESPECT THERETO OR (B) IS THE PAYMENT DATE IMMEDIATELY FOLLOWING THE LAST DAY OF
AN INTEREST PERIOD WITH RESPECT THERETO IF BORROWERS DID NOT GIVE THE PRIOR
NOTICE OF SUCH PREPAYMENT REQUIRED PURSUANT TO THE TERMS OF THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, SUCH LOSS OR EXPENSE ARISING FROM INTEREST OR
FEES PAYABLE BY LENDER TO LENDERS OF FUNDS OBTAINED BY IT IN ORDER TO MAINTAIN
THE LIBOR LOAN HEREUNDER, AND (III) THE CONVERSION (FOR ANY REASON WHATSOEVER,
WHETHER VOLUNTARY OR INVOLUNTARY) OF THE APPLICABLE INTEREST RATE FROM LIBOR
PLUS THE SPREAD TO THE PRIME RATE PLUS THE PRIME RATE SPREAD WITH RESPECT TO ANY
PORTION OF THE OUTSTANDING PRINCIPAL BALANCE THEN BEARING INTEREST AT LIBOR PLUS
THE SPREAD ON A DATE OTHER THAN THE PAYMENT DATE IMMEDIATELY FOLLOWING THE LAST
DAY OF AN INTEREST PERIOD, INCLUDING, WITHOUT LIMITATION, SUCH ACTUAL
OUT-OF-POCKET EXPENSES ARISING FROM INTEREST OR FEES PAYABLE BY LENDER TO
LENDERS OF FUNDS OBTAINED BY IT IN ORDER TO MAINTAIN A LIBOR LOAN HEREUNDER (THE
AMOUNTS REFERRED TO IN CLAUSES (I), (II) AND (III) ARE HEREIN REFERRED TO
COLLECTIVELY AS THE "BREAKAGE COSTS"); PROVIDED, HOWEVER, THAT BORROWERS SHALL
NOT INDEMNIFY LENDER FROM ANY LOSS OR EXPENSE ARISING FROM LENDER'S WILLFUL
MISCONDUCT, FRAUD, ILLEGAL ACTS OR GROSS NEGLIGENCE.
NO BREAKAGE COSTS SHALL BE
DUE OR PAYABLE IF, IN CONNECTION WITH ANY PREPAYMENT OF THE LOAN BY BORROWERS,
BORROWERS PAY INTEREST THROUGH THE NEXT PAYMENT DATE AS PROVIDED IN SECTION
2.4.1 HEREOF.
(I)
SUBJECT TO SECTION 2.2.3(E) ABOVE,
LENDER SHALL NOT BE ENTITLED TO CLAIM COMPENSATION PURSUANT TO THIS SECTION
2.2.3 FOR ANY INDEMNIFIED TAXES OR OTHER TAXES, INCREASED COST OR REDUCTION IN
AMOUNTS RECEIVED OR RECEIVABLE HEREUNDER, OR ANY REDUCED RATE OF RETURN, WHICH
WAS INCURRED OR WHICH ACCRUED MORE THAN NINETY (90) DAYS BEFORE THE DATE LENDER
NOTIFIED BORROWERS IN WRITING OF THE CHANGE IN LAW OR OTHER CIRCUMSTANCE ON
WHICH SUCH CLAIM OF COMPENSATION IS BASED AND DELIVERED TO BORROWERS A WRITTEN
STATEMENT SETTING FORTH IN REASONABLE DETAIL THE BASIS FOR CALCULATING THE
ADDITIONAL AMOUNTS OWED TO LENDER UNDER THIS SECTION 2.2.3, WHICH STATEMENT,
MADE IN GOOD FAITH, SHALL BE CONCLUSIVE AND BINDING UPON ALL PARTIES HERETO
ABSENT MANIFEST ERROR.
2.2.4
Additional Costs.
Lender will use reasonable efforts
(consistent with legal and regulatory restrictions) to maintain the availability
of the LIBOR Loan and to avoid or reduce any increased or additional costs
payable by Borrowers under Section 2.2.3 hereof, including, if requested by
Borrowers, a transfer or assignment of the Loan to a branch, office or Affiliate
of Lender in another jurisdiction, or a redesignation of its lending office with
respect to the Loan, in order to maintain the availability of the LIBOR Loan or
to avoid or reduce such increased or additional costs, provided that the
transfer or assignment or redesignation (a) would not result in any additional
costs, expenses or risk to Lender that