PERFORMED STRICTLY IN
ACCORDANCE WITH THE TERMS HEREOF UNDER ALL CIRCUMSTANCES, WHATSOEVER INCLUDING,
WITHOUT LIMITATION, THE FOLLOWING:
(I)
ANY LACK OF VALIDITY OR ENFORCEABILITY OR RESTRICTION, RESTRAINT,
OR STAY IN THE ENFORCEMENT OF THIS AGREEMENT, ANY L/C, OR ANY OTHER AGREEMENT OR
INSTRUMENT RELATING THERETO;
(II)
ANY AMENDMENT OR WAIVER OF, OR CONSENT TO THE DEPARTURE FROM, ANY
L/C;
(III)
THE EXISTENCE OF ANY CLAIM, SET-OFF, DEFENSE, OR OTHER RIGHT
WHICH THE BORROWERS MAY HAVE AT ANY TIME AGAINST THE BENEFICIARY OF ANY L/C; AND
(IV)
ANY GOOD FAITH HONORING OF A DRAWING UNDER ANY L/C, WHICH DRAWING
POSSIBLY COULD HAVE BEEN DISHONORED BASED UPON A STRICT CONSTRUCTION OF THE
TERMS OF THE L/C.
2.21
CHANGED CIRCUMSTANCES.
(A)
SUBJECT TO THE PROVISIONS OF THIS AGREEMENT, THE BORROWERS SHALL HAVE THE
OPTION (A) AS OF ANY DATE, TO CONVERT ALL OR ANY PART OF BASE MARGIN LOANS TO,
OR REQUEST THAT NEW REVOLVING CREDIT LOANS BE MADE AS, INDEX LOANS OF VARIOUS
INTEREST PERIODS, (B) AS OF THE LAST DAY OF ANY INTEREST PERIOD, TO CONTINUE ALL
OR ANY PORTION OF THE RELEVANT INDEX LOANS AS INDEX LOANS; (C) AS OF THE LAST
DAY OF ANY INTEREST PERIOD, TO CONVERT ALL OR ANY PORTION OF THE INDEX LOANS TO
BASE MARGIN LOANS; AND (D) AT ANY TIME, TO REQUEST NEW REVOLVING CREDIT LOANS AS
BASE MARGIN LOANS; PROVIDED, THAT REVOLVING CREDIT LOANS MAY NOT BE CONTINUED AS
OR CONVERTED TO INDEX LOANS, IF THE CONTINUATION OR CONVERSION THEREOF WOULD
VIOLATE THE PROVISIONS OF SECTIONS 2.21(B) OR 2.21(C) OF THIS AGREEMENT OR IF AN
EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING.
(B)
THE ADMINISTRATIVE AGENT'S DETERMINATION OF THE INDEX RATE AS PROVIDED
ABOVE SHALL BE CONCLUSIVE.
FURTHERMORE, IF THE ADMINISTRATIVE AGENT OR THE
LENDERS DETERMINES, IN GOOD FAITH (WHICH DETERMINATION SHALL BE CONCLUSIVE),
PRIOR TO THE COMMENCEMENT OF ANY INTEREST PERIOD THAT (A) U.S. DOLLAR DEPOSITS
OF SUFFICIENT AMOUNT AND MATURITY FOR FUNDING THE REVOLVING CREDIT LOANS ARE NOT
AVAILABLE TO THE ADMINISTRATIVE AGENT OR THE LENDERS IN THE LONDON INTERBANK
EURODOLLAR MARKET IN THE ORDINARY COURSE OF BUSINESS, OR (B) BY REASON OF
CIRCUMSTANCES AFFECTING THE LONDON INTERBANK EURODOLLAR MARKET, ADEQUATE AND
FAIR MEANS DO NOT EXIST FOR ASCERTAINING THE RATE OF INTEREST TO BE APPLICABLE
TO THE REVOLVING CREDIT LOANS REQUESTED BY THE BORROWERS TO BE INDEX LOANS OR
THE REVOLVING CREDIT LOANS BEARING INTEREST AT THE RATES SET FORTH IN THIS
AGREEMENT SHALL NOT REPRESENT THE EFFECTIVE PRICING TO THE ADMINISTRATIVE AGENT
FOR U.S.
55
DOLLAR DEPOSITS OF A COMPARABLE AMOUNT FOR THE RELEVANT PERIOD (SUCH AS FOR
EXAMPLE, BUT NOT LIMITED TO, OFFICIAL RESERVE REQUIREMENTS REQUIRED BY
REGULATION D TO THE EXTENT NOT GIVEN EFFECT IN DETERMINING THE RATE), THE
ADMINISTRATIVE AGENT SHALL PROMPTLY NOTIFY THE LEAD BORROWER AND (1) ALL
EXISTING INDEX LOANS SHALL CONVERT TO BASE MARGIN LOANS UPON THE END OF THE
APPLICABLE INTEREST PERIOD, AND (2) NO ADDITIONAL INDEX LOANS SHALL BE MADE
UNTIL SUCH CIRCUMSTANCES ARE CURED.
(C)
IF, AFTER THE