WITH THE INTERPRETATION OR ADMINISTRATION
THEREOF, OR (IV) COMPLIANCE BY SUCH LENDER OR ANY CORPORATION OR OTHER ENTITY
CONTROLLING SUCH LENDER WITH ANY CAPITAL ADEQUACY REGULATION, AFFECTS OR WOULD
AFFECT THE AMOUNT OF CAPITAL REQUIRED OR EXPECTED TO BE MAINTAINED BY SUCH
LENDER OR ANY CORPORATION OR OTHER ENTITY CONTROLLING SUCH LENDER AND (TAKING
INTO CONSIDERATION SUCH LENDER'S OR SUCH CORPORATION'S OR OTHER ENTITY'S
POLICIES WITH RESPECT TO CAPITAL ADEQUACY AND SUCH LENDER'S DESIRED RETURN ON
CAPITAL) DETERMINES THAT THE AMOUNT OF SUCH CAPITAL IS INCREASED AS A
CONSEQUENCE OF ITS REVOLVING CREDIT COMMITMENTS, LOANS, CREDITS OR OBLIGATIONS
UNDER THIS AGREEMENT, THEN, UPON DEMAND OF SUCH LENDER TO THE BORROWERS THROUGH
THE AGENT, THE BORROWERS SHALL PAY TO SUCH LENDER, FROM TIME TO TIME AS
SPECIFIED BY SUCH LENDER, ADDITIONAL AMOUNTS SUFFICIENT TO COMPENSATE SUCH
LENDER FOR SUCH INCREASE.
4.4
FUNDING LOSSES.
FMC OR FRC, AS THE CASE MAY
BE, SHALL REIMBURSE EACH REVOLVING CREDIT LENDER AND HOLD EACH REVOLVING CREDIT
LENDER HARMLESS FROM ANY LOSS OR EXPENSE WHICH SUCH LENDER MAY SUSTAIN OR INCUR
AS A CONSEQUENCE OF:
(A)
THE FAILURE OF THE APPLICABLE BORROWER(S)
TO MAKE ON A TIMELY BASIS ANY PAYMENT OF PRINCIPAL OF ANY LIBOR RATE LOAN;
(B)
THE FAILURE OF THE APPLICABLE BORROWER(S) TO
BORROW, CONTINUE OR CONVERT A LOAN AFTER SUCH BORROWER HAS GIVEN (OR IS DEEMED
TO HAVE GIVEN) A NOTICE OF BORROWING OR A NOTICE OF CONTINUATION/CONVERSION; OR
31
(C)
THE PREPAYMENT OR OTHER PAYMENT (INCLUDING
AFTER ACCELERATION THEREOF) OF ANY LIBOR RATE LOANS ON A DAY THAT IS NOT THE
LAST DAY OF THE RELEVANT INTEREST PERIOD;
including any such loss of anticipated profit and any loss or expense arising
from the liquidation or reemployment of funds obtained by it to maintain its
LIBOR Rate Loans or from fees payable to terminate the deposits from which such
funds were obtained.
The Borrowers shall also pay any customary administrative
fees charged by any Lender in connection with the foregoing.
4.5
INABILITY TO DETERMINE RATES.
IF THE AGENT
DETERMINES THAT FOR ANY REASON ADEQUATE AND REASONABLE MEANS DO NOT EXIST FOR
DETERMINING THE LIBOR RATE FOR ANY REQUESTED INTEREST PERIOD WITH RESPECT TO A
PROPOSED LIBOR RATE LOAN, OR THAT THE LIBOR RATE FOR ANY REQUESTED INTEREST
PERIOD WITH RESPECT TO A PROPOSED LIBOR RATE LOAN DOES NOT ADEQUATELY AND FAIRLY
REFLECT THE COST TO THE REVOLVING CREDIT LENDERS OF FUNDING SUCH LOAN, THE AGENT
WILL PROMPTLY SO NOTIFY THE BORROWERS AND EACH REVOLVING CREDIT LENDER.
THEREAFTER, THE OBLIGATION OF THE REVOLVING CREDIT LENDERS TO MAKE OR MAINTAIN
LIBOR RATE LOANS HEREUNDER SHALL BE SUSPENDED UNTIL THE AGENT REVOKES SUCH
NOTICE IN WRITING; AND THE AGENT SHALL PROMPTLY DELIVER SUCH NOTICE AFTER IT
DETERMINES THAT THE REASON FOR SUCH SUSPENSION NO LONGER EXISTS.
UPON RECEIPT
OF SUCH NOTICE OF SUSPENSION, BORROWERS MAY REVOKE ANY NOTICE OF BORROWING OR
NOTICE OF CONTINUATION/CONVERSION THEN SUBMITTED BY IT.
IF THE APPLICABLE
BORROWER DOES NOT REVOKE SUCH NOTICE, THE REVOLVING CREDIT LENDERS SHALL MAKE,
CONVERT OR