detail the
cause for the reduction in its Return and its calculation of the amount of such
reduction.
Thereafter, the Lender may send a new notice during each calendar
quarter setting forth the calculation of the reduced Return for that quarter and
including a demand for payment of the amount necessary to restore its Return for
that quarter.
The Lender's calculation in any such notice shall be conclusive
and binding absent demonstrable error.
(B)
BASIS FOR DETERMINING INTEREST RATE
INADEQUATE OR UNFAIR.
IF WITH RESPECT TO ANY INTEREST PERIOD:
(I)
THE LENDER DETERMINES THAT DEPOSITS IN
US DOLLARS (IN THE APPLICABLE AMOUNTS) ARE NOT BEING OFFERED IN THE LONDON
INTERBANK EURODOLLAR MARKET FOR SUCH INTEREST PERIOD; OR
(II)
THE LENDER OTHERWISE DETERMINES THAT BY
REASON OF CIRCUMSTANCES AFFECTING THE LONDON INTERBANK EURODOLLAR MARKET
ADEQUATE AND REASONABLE MEANS DO NOT EXIST FOR ASCERTAINING THE APPLICABLE LIBOR
RATE; OR
(III)
THE LIBOR RATE WILL NOT ADEQUATELY AND
FAIRLY REFLECT THE COST TO THE LENDER OF FUNDING ANY LIBOR RATE ADVANCE FOR SUCH
INTEREST PERIOD, OR THAT THE FUNDING OF LIBOR RATE ADVANCES HAS BECOME
IMPRACTICABLE AS A RESULT OF AN EVENT OCCURRING AFTER THE DATE OF THIS AGREEMENT
WHICH IN THE OPINION OF THE LENDER MATERIALLY AFFECTS SUCH LIBOR RATE
18
ADVANCES;
then the Lender shall promptly notify the Borrower and (A) in the event of any
occurrence described in the foregoing clauses (i) and (ii), the Borrower shall
enter into good faith negotiations with the Lender in order to determine an
alternate method to determine the LIBOR Rate, and during the pendency of such
negotiations with the Lender, the Lender shall be under no obligation to make
any new LIBOR Rate Advances and (B) in the event of any occurrence described in
the foregoing clause (iii), for so long as such circumstances shall continue,
the Lender shall be under no obligation to make any new LIBOR Rate Advances.
(C)
ILLEGALITY.
IF ANY RULE CHANGE SHOULD MAKE
IT OR, IN THE GOOD FAITH JUDGMENT OF THE LENDER, SHALL RAISE A SUBSTANTIAL
QUESTION AS TO WHETHER IT IS UNLAWFUL FOR THE LENDER TO MAKE, CREATE, MAINTAIN
OR FUND LIBOR RATE ADVANCES, THEN (I) THE LENDER SHALL PROMPTLY NOTIFY THE
BORROWER, (II) THE OBLIGATION OF THE LENDER TO MAKE, MAINTAIN OR CONVERT INTO
LIBOR RATE ADVANCES SHALL, UPON THE EFFECTIVENESS OF SUCH EVENT, BE SUSPENDED
FOR THE DURATION OF SUCH UNLAWFULNESS, AND (III) FOR THE DURATION OF SUCH
UNLAWFULNESS, ANY NOTICE BY THE BORROWER PURSUANT TO SECTION 2.2(A),
SECTION 2.3(A) OR SECTION 2.3(B) REQUESTING THE LENDER TO MAKE, CONTINUE MAKING
OR CONVERT INTO LIBOR RATE ADVANCES SHALL BE CONSTRUED AS A REQUEST TO MAKE OR
TO CONTINUE MAKING FLOATING RATE ADVANCES.
Section 2.5
Letters of Credit.
(A)
THE LENDER AGREES, ON THE TERMS AND SUBJECT
TO THE CONDITIONS HEREIN SET FORTH, TO CAUSE AN ISSUER TO ISSUE, FROM THE
FUNDING DATE TO THE TERMINATION DATE, ONE OR MORE IRREVOCABLE STANDBY OR
DOCUMENTARY LETTERS OF CREDIT (EACH, A "LETTER OF CREDIT") FOR THE BORROWER'S