WITH RESPECT TO WHICH SUCH ADDITIONAL AMOUNT IS OWED IN THE
AMOUNT OF TAXES (OTHER THAN EXCLUDED TAXES) CERTIFIED BY AGENT (OR THE
APPLICABLE LENDER). FAILURE ON THE PART OF AGENT TO DEMAND PAYMENT FROM BORROWER
FOR ANY TAXES (OTHER THAN EXCLUDED TAXES) ATTRIBUTABLE TO ANY PARTICULAR PERIOD
SHALL NOT CONSTITUTE A WAIVER OF AGENT'S (OR THE APPLICABLE LENDER'S) RIGHT TO
DEMAND PAYMENT OF SUCH AMOUNT FOR ANY SUBSEQUENT OR PRIOR PERIOD; PROVIDED,
HOWEVER, THAT NO DEMAND FOR ANY PAYMENT HEREUNDER MAY BE MADE MORE THAN ONE
HUNDRED EIGHTY (180) DAYS AFTER THE SAME HAS ACCRUED. IF BORROWER IS OBLIGATED
TO PAY ANY MATERIAL ADDITIONAL AMOUNTS DESCRIBED IN THIS SECTION 2.10 TO A
LENDER OR AGENT, THEN, AT BORROWER'S SOLE REASONABLE COST AND EXPENSE, SUCH
LENDER OR AGENT, AS THE CASE MAY BE, SHALL MAKE REASONABLE EFFORTS TO DESIGNATE
ANOTHER LENDING BRANCH OR AGENCY OF SUCH LENDER OR AGENT TO MAINTAIN ITS SHARE
OF THE LOAN IF SUCH DESIGNATION WOULD AVOID THE NEED FOR, OR MATERIALLY REDUCE
THE AMOUNT OF, SUCH ADDITIONAL AMOUNTS AND WOULD NOT, IN THE GOOD FAITH OPINION
OF SUCH LENDER OR AGENT, RESULT IN ANY ADVERSE ECONOMIC, TAX, LEGAL OR
REGULATORY CONSEQUENCES FOR, OR OTHERWISE BE DISADVANTAGEOUS TO, SUCH LENDER OR
AGENT OR SUCH LENDING BRANCH OR AGENCY.
SECTION 2.11.
UNAVAILABILITY OF LIBOR; ILLEGALITY.
(A)
UNAVAILABILITY OF LIBOR.
IF ON ANY DATE ON WHICH BORROWER SEEKS
TO ESTABLISH A LIBOR RATE AS THE APPLICABLE INTEREST RATE PURSUANT TO
SECTION 2.3 HEREOF OR IF SECTION 2.3(D) HEREOF APPLIES, AGENT DETERMINES (WHICH
DETERMINATION SHALL BE CONCLUSIVE AND BINDING UPON BORROWER) THAT (I) DOLLAR
DEPOSITS IN AN AMOUNT APPROXIMATELY EQUAL TO THE THEN OUTSTANDING PRINCIPAL
BALANCE OF THE LOAN BEARING INTEREST AT A LIBOR RATE ARE NOT GENERALLY AVAILABLE
TO ANY LENDER AT SUCH TIME IN THE LONDON INTERBANK EURODOLLAR MARKET FOR
DEPOSITS IN EURODOLLARS, (II) REASONABLE MEANS DO NOT EXIST FOR ASCERTAINING
LIBOR, OR (III) THE APPLICABLE INTEREST RATE WOULD BE IN EXCESS OF THE MAXIMUM
INTEREST RATE WHICH BORROWER MAY BY LAW PAY, AGENT SHALL PROMPTLY GIVE NOTICE
(THE "NON-AVAILABILITY NOTICE") OF SUCH FACT TO BORROWER AND THE OPTION TO
CONVERT TO OR TO CONTINUE THE APPLICABLE INTEREST RATE ON SUCH LOAN PORTION AS A
LIBOR RATE SHALL BE SUSPENDED UNTIL SUCH TIME AS SUCH CONDITION NO LONGER
EXISTS. IN THE EVENT
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THAT THE OPTION TO ELECT, TO CONVERT TO OR TO CONTINUE AN APPLICABLE INTEREST
RATE AS A LIBOR RATE SHALL BE SUSPENDED AS PROVIDED IN THIS SECTION 2.11(A),
EFFECTIVE UPON THE GIVING OF THE NON-AVAILABILITY NOTICE, AND IF APPLICABLE,
EFFECTIVE AS OF THE FIRST DATE THAT THE ONE (1) MONTH LIBOR RATE PERIOD WOULD
OTHERWISE BE IN EFFECT PURSUANT TO SECTION 2.3(D) HEREOF, INTEREST ON THE LOAN
PORTION(S) FOR WHICH A LIBOR RATE WAS TO BE DETERMINED SHALL BE PAYABLE AT THE
BASE RATE, FROM AND INCLUDING THE DATE OF THE GIVING OF THE NON-AVAILABILITY
NOTICE (OR THE DATE THAT THE ONE (1) MONTH LIBOR RATE PERIOD WOULD OTHERWISE BE
IN EFFECT PURSUANT