RECEIVABLE OR REDUCTION IN RETURN ON
CAPITAL WITH RESPECT TO ANY PERIOD SHALL NOT CONSTITUTE A WAIVER OF SUCH
LENDER'S RIGHT TO DEMAND COMPENSATION WITH RESPECT TO SUCH PERIOD OR ANY OTHER
PERIOD.
THE PROTECTION OF THIS SECTION SHALL BE AVAILABLE TO EACH LENDER
REGARDLESS OF ANY POSSIBLE CONTENTION OF THE INVALIDITY OR INAPPLICABILITY OF
THE LAW, RULE, REGULATION, GUIDELINE OR OTHER CHANGE OR CONDITION WHICH SHALL
HAVE OCCURRED OR BEEN IMPOSED.
33
SECTION 2.16.
CHANGE IN LEGALITY.
(A)
NOTWITHSTANDING ANY OTHER PROVISION
HEREIN, IF ANY CHANGE IN ANY LAW OR REGULATION OR IN THE INTERPRETATION THEREOF
BY ANY GOVERNMENTAL AUTHORITY CHARGED WITH THE ADMINISTRATION OR INTERPRETATION
THEREOF SHALL MAKE IT UNLAWFUL FOR ANY LENDER TO MAKE OR MAINTAIN ANY EURODOLLAR
LOAN OR TO GIVE EFFECT TO ITS OBLIGATIONS AS CONTEMPLATED HEREBY WITH RESPECT TO
ANY EURODOLLAR LOAN, THEN, BY WRITTEN NOTICE TO THE BORROWER AND TO THE AGENT,
SUCH LENDER MAY:
(I)
DECLARE THAT EURODOLLAR LOANS WILL NOT THEREAFTER BE MADE BY SUCH LENDER
HEREUNDER, WHEREUPON SUCH LENDER SHALL NOT SUBMIT A COMPETITIVE BID IN RESPONSE
TO A REQUEST FOR EURODOLLAR COMPETITIVE LOANS AND ANY REQUEST BY THE BORROWER
FOR A EURODOLLAR STANDBY BORROWING SHALL, AS TO SUCH LENDER ONLY, BE DEEMED A
REQUEST FOR AN ABR LOAN UNLESS SUCH DECLARATION SHALL BE SUBSEQUENTLY WITHDRAWN;
AND
(II)
REQUIRE THAT ALL OUTSTANDING EURODOLLAR LOANS MADE BY IT BE CONVERTED TO
ABR LOANS, IN WHICH EVENT ALL SUCH EURODOLLAR LOANS SHALL BE AUTOMATICALLY
CONVERTED TO ABR LOANS AS OF THE EFFECTIVE DATE OF SUCH NOTICE AS PROVIDED IN
PARAGRAPH (B) BELOW.
In the event any Lender shall exercise its rights under (i) or (ii) above, and
(x) all payments and prepayments of principal which would otherwise have been
applied to repay the Eurodollar Loans that would have been made by such Lender
or the converted Eurodollar Loans of such Lender shall instead be applied to
repay the ABR Loans made by such Lender in lieu of, or resulting from the
conversion of, such Eurodollar Loans and (y) such Lender shall negotiate with
the Borrower, at its request, as to the interest rate which such ABR Loans shall
bear; provided that such Loans shall bear interest as provided in
Section 2.09(b) pending the execution by the Borrower and such Lender of a
written agreement providing for a different interest rate.
(B)
FOR PURPOSES OF THIS SECTION, A NOTICE TO THE BORROWER BY ANY LENDER SHALL
BE EFFECTIVE AS TO EACH EURODOLLAR LOAN, IF LAWFUL, ON THE LAST DAY OF THE
INTEREST PERIOD CURRENTLY APPLICABLE TO SUCH EURODOLLAR LOAN; IN ALL OTHER CASES
SUCH NOTICE SHALL BE EFFECTIVE ON THE DATE OF RECEIPT BY THE BORROWER.
SECTION 2.17.
INDEMNITY.
THE BORROWER SHALL INDEMNIFY EACH LENDER AGAINST ANY
LOSS (OTHER THAN LOSS OF PROFITS) OR EXPENSE WHICH SUCH LENDER MAY SUSTAIN OR
INCUR AS A CONSEQUENCE OF (A) ANY FAILURE BY THE BORROWER TO FULFILL ON THE DATE
OF ANY BORROWING HEREUNDER THE APPLICABLE CONDITIONS SET FORTH IN ARTICLE IV,
(B) ANY FAILURE