A CERTIFICATE AS TO ANY ADDITIONAL AMOUNTS
PAYABLE PURSUANT TO THIS SECTION SUBMITTED BY THE LENDER TO ANY BORROWER SHALL
BE CONCLUSIVE IN THE ABSENCE OF MANIFEST ERROR.
NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN THIS SECTION, EACH BORROWER SHALL NOT BE REQUIRED TO COMPENSATE A
LENDER PURSUANT TO THIS SECTION FOR ANY AMOUNTS INCURRED MORE THAN 180 DAYS
PRIOR TO THE DATE THAT THE LENDER NOTIFIES SUCH BORROWER OF THE LENDER'S
INTENTION TO CLAIM COMPENSATION THEREFOR; PROVIDED, THAT, IF THE CIRCUMSTANCES
GIVING RISE TO SUCH CLAIM HAVE A RETROACTIVE EFFECT, THEN SUCH 180 DAY PERIOD
SHALL BE EXTENDED TO INCLUDE THE PERIOD OF SUCH RETROACTIVE EFFECT.
THE
OBLIGATIONS OF EACH BORROWER PURSUANT TO THIS SECTION SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT AND THE PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS
PAYABLE HEREUNDER.
32
SECTION 2.13
REPLACEMENT INDEX.
IN THE EVENT OF
THE APPLICATION OF SECTIONS 2.10, 2.11 AND 2.12 OF THIS AGREEMENT, THE BORROWERS
AND THE LENDER SHALL AGREE TO NEGOTIATE IN GOOD FAITH TO REPLACE THE LIBOR RATE
AS INDEX FOR THE LOANS WITH A MUTUALLY ACCEPTABLE LOAN INDEX; PROVIDED, THAT IN
THE EVENT THE PARTIES ARE UNABLE TO AGREE ON A REPLACEMENT INDEX WITHIN THIRTY
(30) CALENDAR DAYS, ALL OUTSTANDING LOANS AT THE LIBOR RATE PAYABLE TO THE
LENDER SHALL AUTOMATICALLY CONVERT INTO LOANS AT A RATE PER ANNUM EQUAL TO THE
FEDERAL FUNDS RATE, PLUS, 0.50%, PLUS, THE APPLICABLE MARGIN, UNTIL THE EARLIER
OF (X) THE DATE THE LENDER AND THE BORROWERS HAVE AGREED ON A REPLACEMENT INDEX
AND (Y) THE TERMINATION DATE.
ARTICLE III
PAYMENTS; COMPUTATIONS; ETC.
SECTION 3.01
PAYMENTS.
(A)
EXCEPT TO THE EXTENT OTHERWISE PROVIDED
HEREIN, ALL PAYMENTS OF PRINCIPAL, INTEREST AND OTHER AMOUNTS TO BE MADE BY THE
BORROWERS UNDER THIS AGREEMENT AND THE NOTE, SHALL BE MADE IN DOLLARS, IN
IMMEDIATELY AVAILABLE FUNDS, WITHOUT DEDUCTION, SET-OFF OR COUNTERCLAIM, TO THE
LENDER AT THE FOLLOWING ACCOUNT MAINTAINED BY THE LENDER:
ACCOUNT NO.
A/C
008-12-914, FOR THE ACCOUNT OF LENDER, BANKERS TRUST CO., ABA NO. 021-001-033,
ATTN: MLMCI MATCHBOOK, NOT LATER THAN 1:00 P.M., NEW YORK CITY TIME, ON THE DATE
ON WHICH SUCH PAYMENT SHALL BECOME DUE (AND EACH SUCH PAYMENT MADE AFTER SUCH
TIME ON SUCH DUE DATE SHALL BE DEEMED TO HAVE BEEN MADE ON THE NEXT SUCCEEDING
BUSINESS DAY).
EACH BORROWER ACKNOWLEDGES THAT IT HAS NO RIGHTS OF WITHDRAWAL
FROM THE FOREGOING ACCOUNT.
(B)
EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY
PROVIDED HEREIN, IF THE DUE DATE OF ANY PAYMENT UNDER THIS AGREEMENT OR THE NOTE
WOULD OTHERWISE FALL ON A DAY THAT IS NOT A BUSINESS DAY, SUCH DATE SHALL BE
EXTENDED TO THE NEXT SUCCEEDING BUSINESS DAY, AND INTEREST SHALL BE PAYABLE FOR
ANY PRINCIPAL SO EXTENDED FOR THE PERIOD OF SUCH EXTENSION.
SECTION 3.02
COMPUTATIONS.
INTEREST ON THE LOANS
SHALL BE COMPUTED ON THE BASIS OF A 360-DAY YEAR FOR THE ACTUAL DAYS ELAPSED
(INCLUDING THE FIRST DAY BUT EXCLUDING THE LAST DAY) OCCURRING IN THE PERIOD FOR
WHICH PAYABLE.
SECTION 3.03
REQUIREMENTS OF LAW.