WITH RESPECT TO EXCLUDED TAXES), (II) IMPOSING,
MODIFYING OR APPLYING ANY RESERVE, SPECIAL DEPOSIT OR SIMILAR REQUIREMENT
AGAINST ASSETS OF, DEPOSITS WITH OR FOR THE ACCOUNT OF, CREDIT EXTENDED BY, OR
ANY OTHER ACQUISITION OF FUNDS FOR LOANS BY ANY LENDER (WHETHER DIRECTLY,
INDIRECTLY OR ON A
41
PORTFOLIO WIDE BASIS) OR (III) IMPOSING ANY OTHER CONDITION AFFECTING
TRANSACTIONS IN THE NATURE OF THE LOAN.
(B)
IF ANY LENDER SHALL DETERMINE THAT (I) ANY CHANGE IN THE
APPLICATION OF ANY LAW, RULE, REGULATION OR GUIDELINE ADOPTED OR ARISING OUT OF
THE JUNE 2006 REPORT OF THE BASEL COMMITTEE ON BANKING REGULATIONS AND
SUPERVISORY PRACTICES ENTITLED "BASEL II:
INTERNATIONAL CONVERGENCE OF CAPITAL
MEASUREMENT AND CAPITAL STANDARDS:
A REVISED FRAMEWORK -COMPREHENSIVE VERSION",
OR ANY CHANGE IN THE INTERPRETATION OR ADMINISTRATION THEREOF BY ANY DOMESTIC OR
FOREIGN GOVERNMENTAL AUTHORITY, CENTRAL BANK OR COMPARABLE AGENCY CHARGED WITH
THE INTERPRETATION OR ADMINISTRATION THEREOF, (II) ANY CHANGE IN OR ADOPTION OF
ANY OTHER LAW, RULE, REGULATION OR GUIDELINE REGARDING CAPITAL ADEQUACY, OR
(III) COMPLIANCE BY ANY LENDER, OR ANY LENDING OFFICE OF ANY LENDER, OR THE
HOLDING COMPANY OF ANY LENDER, WITH ANY REQUEST OR DIRECTIVE REGARDING CAPITAL
ADEQUACY (WHETHER OR NOT HAVING THE FORCE OF LAW) OF ANY SUCH AUTHORITY, CENTRAL
BANK OR COMPARABLE AGENCY BASED ON ANY SUCH CHANGE OR ADOPTION, HAS OR WOULD
HAVE THE EFFECT OF REDUCING THE RATE OF RETURN ON ANY LENDER'S CAPITAL TO A
LEVEL BELOW THAT WHICH SUCH LENDER WOULD HAVE ACHIEVED BUT FOR SUCH ADOPTION,
CHANGE OR COMPLIANCE (TAKING INTO CONSIDERATION THE POLICIES OF SUCH LENDER WITH
RESPECT TO CAPITAL ADEQUACY), THEN FROM TIME TO TIME BORROWER SHALL PAY TO AGENT
SUCH ADDITIONAL AMOUNTS AS WILL BE SUFFICIENT TO COMPENSATE LENDERS FOR SUCH
ACTUAL REDUCTION WITH RESPECT TO ANY PORTION OF THE LOAN OUTSTANDING. IF
BORROWER BECOMES OBLIGATED TO PAY ANY MATERIAL ADDITIONAL AMOUNTS DESCRIBED IN
THIS SECTION 2.12, SUCH LENDER SHALL, AS PROMPTLY AS PRACTICABLE, AT BORROWER'S
SOLE REASONABLE COST AND EXPENSE, MAKE REASONABLE EFFORTS TO DESIGNATE ANOTHER
LENDING BRANCH OR AGENCY OF SUCH LENDER TO MAINTAIN ITS SHARE OF THE LOAN IF
SUCH DESIGNATION WOULD ENABLE IT TO LAWFULLY HONOR ITS OBLIGATION TO MAKE OR
MAINTAIN ITS SHARE OF THE LOAN 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.
(C)
ANY AMOUNT PAYABLE BY BORROWER PURSUANT TO SECTION 2.12(A) OR
(B) HEREOF SHALL BE PAID TO AGENT WITHIN THIRTY (30) DAYS OF RECEIPT BY BORROWER
OF A CERTIFICATE OF AGENT SETTING FORTH THE AMOUNT DUE AND AGENT'S BASIS FOR THE
DETERMINATION OF SUCH AMOUNT, WHICH STATEMENT SHALL BE CONCLUSIVE AND BINDING
UPON BORROWER ABSENT MANIFEST ERROR. FAILURE ON THE PART OF AGENT TO DEMAND
PAYMENT FROM BORROWER FOR ANY SUCH AMOUNT ATTRIBUTABLE TO ANY PARTICULAR PERIOD
SHALL NOT CONSTITUTE A WAIVER OF AGENT'S RIGHT TO DEMAND PAYMENT OF SUCH AMOUNT
FOR ANY SUBSEQUENT