L/C LENDER'S OR SUCH CORPORATION'S CAPITAL AS A
CONSEQUENCE OF ITS OBLIGATIONS HEREUNDER OR UNDER ANY LETTER OF CREDIT TO A
LEVEL BELOW THAT WHICH SUCH LENDER OR L/C LENDER OR SUCH CORPORATION COULD HAVE
ACHIEVED BUT FOR SUCH ADOPTION, CHANGE OR COMPLIANCE (TAKING INTO CONSIDERATION
SUCH LENDER'S OR L/C LENDER'S OR SUCH CORPORATION'S POLICIES WITH RESPECT TO
CAPITAL ADEQUACY), THEN FROM TIME TO TIME, AFTER SUBMISSION BY SUCH LENDER OR
L/C LENDER TO BORROWER (WITH A COPY TO ADMINISTRATIVE AGENT) OF A WRITTEN
REQUEST THEREFOR (SETTING FORTH IN REASONABLE DETAIL THE AMOUNT PAYABLE TO THE
AFFECTED LENDER OR L/C LENDER AND THE BASIS FOR SUCH REQUEST), BORROWER SHALL
PROMPTLY PAY TO SUCH LENDER OR L/C LENDER SUCH ADDITIONAL AMOUNT OR AMOUNTS AS
WILL COMPENSATE SUCH LENDER OR L/C LENDER ON A NET AFTER-TAX BASIS FOR SUCH
REDUCTION.
80
(C)
FAILURE OR DELAY ON THE PART OF ANY LENDER OR L/C LENDER TO DEMAND
COMPENSATION PURSUANT TO THIS SECTION 5.01 SHALL NOT CONSTITUTE A WAIVER OF SUCH
LENDER'S OR L/C LENDER'S RIGHT TO DEMAND SUCH COMPENSATION; PROVIDED, HOWEVER,
THAT BORROWER SHALL NOT BE REQUIRED TO COMPENSATE A LENDER OR L/C LENDER
PURSUANT TO THIS SECTION 5.01 FOR ANY INCREASED COSTS OR REDUCTIONS INCURRED
MORE THAN 90 DAYS PRIOR TO THE DATE THAT SUCH LENDER OR L/C LENDER, AS THE CASE
MAY BE, NOTIFIES BORROWER OF THE CHANGE IN LAW GIVING RISE TO SUCH INCREASED
COSTS OR REDUCTIONS AND OF SUCH LENDER'S OR L/C LENDER'S INTENTION TO CLAIM
COMPENSATION THEREFOR; PROVIDED, FURTHER, THAT IF THE CHANGE IN LAW GIVING RISE
TO SUCH INCREASED COSTS OR REDUCTIONS IS RETROACTIVE, THEN THE 90-DAY PERIOD
REFERRED TO ABOVE SHALL BE EXTENDED TO INCLUDE THE PERIOD OF RETROACTIVE EFFECT
THEREOF.
SECTION 5.02.
INABILITY TO DETERMINE INTEREST RATE.
IF PRIOR TO THE FIRST
DAY OF ANY INTEREST PERIOD:
(A) ADMINISTRATIVE AGENT SHALL HAVE DETERMINED
(WHICH DETERMINATION SHALL BE CONCLUSIVE AND BINDING UPON BORROWER) THAT, BY
REASON OF CIRCUMSTANCES AFFECTING THE RELEVANT MARKET, ADEQUATE AND REASONABLE
MEANS DO NOT EXIST FOR ASCERTAINING THE LIBO BASE RATE FOR SUCH INTEREST PERIOD,
OR (B) ADMINISTRATIVE AGENT SHALL HAVE RECEIVED NOTICE FROM REQUIRED LENDERS
THAT DOLLAR DEPOSITS ARE NOT AVAILABLE IN THE RELEVANT AMOUNT AND FOR THE
RELEVANT INTEREST PERIOD AVAILABLE TO THE REQUIRED LENDERS IN THEIR RELEVANT
MARKET, ADMINISTRATIVE AGENT SHALL GIVE TELECOPY OR TELEPHONIC NOTICE THEREOF TO
BORROWER AND THE LENDERS AS SOON AS PRACTICABLE THEREAFTER.
IF SUCH NOTICE IS
GIVEN (X) ANY LIBOR LOANS REQUESTED TO BE MADE ON THE FIRST DAY OF SUCH INTEREST
PERIOD SHALL BE MADE AS ABR LOANS, (Y) ANY LOANS THAT WERE TO HAVE BEEN
CONVERTED ON THE FIRST DAY OF SUCH INTEREST PERIOD TO LIBOR LOANS SHALL BE
CONVERTED TO OR CONTINUED AS ABR LOANS AND (Z) ANY OUTSTANDING LIBOR LOANS SHALL
BE CONVERTED, ON THE FIRST DAY OF SUCH INTEREST PERIOD, TO ABR LOANS.
UNTIL
SUCH NOTICE HAS BEEN WITHDRAWN BY ADMINISTRATIVE AGENT, NO FURTHER LIBOR LOANS
SHALL BE MADE OR CONTINUED AS SUCH, NOR SHALL BORROWER HAVE THE