made by the Borrower to the Lenders, provided that the term "LIBOR Tax" shall
not include any taxes imposed upon the net income of the Lenders by the United
States of America, the United Kingdom or any political subdivision thereof.
2.3.
CONDITIONS FOR BASING INTEREST ON THE LIBOR RATE.
UPON THE
CONDITION THAT:
(A)
THE AGENT SHALL HAVE RECEIVED A LIBOR REQUEST FROM THE BORROWER,
AT LEAST THREE (3) BANKING DAYS PRIOR TO THE FIRST DAY OF THE LIBOR PERIOD
REQUESTED;
(B)
THERE SHALL HAVE OCCURRED NO CHANGE IN APPLICABLE LAW WHICH WOULD
MAKE IT UNLAWFUL FOR THE AGENT TO OBTAIN DEPOSITS OF US DOLLARS IN THE LONDON
INTERBANK FOREIGN CURRENCY DEPOSITS MARKET;
(C)
AS OF THE DATE OF THE LIBOR REQUEST AND THE FIRST DAY OF THE LIBOR
PERIOD, THERE SHALL EXIST NO DEFAULT OR EVENT OF DEFAULT; AND
(D)
THE AGENT SHALL NOT HAVE DETERMINED IN GOOD FAITH THAT IT IS
UNABLE TO DETERMINE THE LIBOR RATE IN RESPECT OF THE REQUESTED LIBOR PERIOD OR
THAT IT IS UNABLE TO OBTAIN DEPOSITS OF US DOLLARS IN THE LONDON INTERBANK
FOREIGN CURRENCY DEPOSITS MARKET IN THE APPLICABLE AMOUNTS AND FOR THE REQUESTED
LIBOR PERIOD; THEN
the interest on the LIBOR Portion specified in the LIBOR Request during the
LIBOR Period specified in the LIBOR Request will be based on the applicable
LIBOR Rate.
2.4.
INDEMNIFICATION FOR FUNDING AND OTHER LOSSES.
EACH LIBOR REQUEST
SHALL BE IRREVOCABLE AND BINDING ON THE BORROWER, PROVIDED THAT THE BORROWER MAY
SPECIFY IN ANY SUCH LIBOR REQUEST A MAXIMUM LIBOR RATE WHICH THEY WILL ACCEPT
FOR THE RELATED LIBOR PERIOD AND THE LIBOR OPTION ELECTED IN SUCH LIBOR REQUEST
SHALL NOT BECOME EFFECTIVE IF THE APPLICABLE LIBOR RATE DETERMINED BY THE AGENT
SHALL EXCEED SUCH SPECIFIED MAXIMUM.
WITHOUT LIMITING THE GENERALITY OF
SUBSECTION 2.5, THE BORROWER HEREBY AGREES TO INDEMNIFY THE AGENT AND LENDERS
AGAINST ANY LOSS OR EXPENSE INCURRED BY THE AGENT OR ANY LENDER AS A RESULT OF
ANY FAILURE ON THE PART OF THE BORROWER (SO LONG AS SUCH FAILURE IS THROUGH NO
FAULT OF THE AGENT OR LENDERS) TO FULFILL, ON OR BEFORE THE DATE SPECIFIED IN
ANY LIBOR REQUEST, THE APPLICABLE CONDITIONS SET FORTH IN THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, ANY LOSS (INCLUDING LOSS OF ANTICIPATED PROFITS)
OR EXPENSE INCURRED BY REASON OF THE LIQUIDATION OF REDEPLOYMENT OF DEPOSITS OR
OTHER FUNDS ACQUIRED BY THE AGENT OR ANY LENDER TO FUND OR MAINTAIN THE
REQUESTED LIBOR
10
PORTION WHEN INTEREST ON SUCH LIBOR PORTION, AS A RESULT OF SUCH FAILURE ON THE
PART OF THE BORROWER, IS NOT BASED ON THE APPLICABLE LIBOR RATE FOR THE
REQUESTED LIBOR PERIOD.
2.5.
CHANGE IN APPLICABLE LAWS, REGULATIONS, ETC.
IF ANY LEGAL
REQUIREMENT SHALL MAKE IT UNLAWFUL FOR ANY LENDER TO FUND THROUGH THE PURCHASE
OF US DOLLAR DEPOSITS ANY LIBOR PORTION, OR OTHERWISE TO GIVE EFFECT TO ITS
OBLIGATIONS AS CONTEMPLATED HEREBY, OR SHALL IMPOSE ON ANY LENDER ANY COSTS
BASED ON OR MEASURED BY THE EXCESS ABOVE A SPECIFIED