THIS ARTICLE II, AND SUCH FUNDS ARE NOT MADE AVAILABLE TO THE BORROWERS BY THE
ADMINISTRATIVE AGENT BECAUSE THE CONDITIONS TO THE APPLICABLE CREDIT EXTENSION
SET FORTH IN ARTICLE IV ARE NOT SATISFIED OR WAIVED IN ACCORDANCE WITH THE TERMS
HEREOF, THEN THE ADMINISTRATIVE AGENT SHALL RETURN SUCH FUNDS (IN LIKE FUNDS AS
RECEIVED FROM SUCH LENDER) TO SUCH LENDER, WITHOUT INTEREST.
(F)
THE OBLIGATIONS OF THE LENDERS HEREUNDER TO MAKE LOANS ARE SEVERAL
AND NOT JOINT.
THE FAILURE OF ANY LENDER TO MAKE ANY LOAN OR TO FUND ANY SUCH
PARTICIPATION ON ANY DATE REQUIRED HEREUNDER SHALL NOT RELIEVE ANY OTHER LENDER
OF ITS CORRESPONDING OBLIGATION TO DO SO ON SUCH DATE, AND NO LENDER SHALL BE
RESPONSIBLE FOR THE FAILURE OF ANY OTHER LENDER TO SO MAKE ITS LOAN OR PURCHASE
ITS PARTICIPATION.
(G)
NOTHING HEREIN SHALL BE DEEMED TO OBLIGATE ANY LENDER TO OBTAIN THE
FUNDS FOR ANY LOAN IN ANY PARTICULAR PLACE OR MANNER OR TO CONSTITUTE A
REPRESENTATION BY ANY LENDER THAT IT HAS OBTAINED OR WILL OBTAIN THE FUNDS FOR
ANY LOAN IN ANY PARTICULAR PLACE OR MANNER.
SECTION 2.13
SHARING OF PAYMENTS.
IF, OTHER THAN AS EXPRESSLY
PROVIDED ELSEWHERE HEREIN, ANY LENDER SHALL OBTAIN ON ACCOUNT OF THE LOANS MADE
BY IT, OR L/C EXPOSURES HELD BY IT, ANY PAYMENT (WHETHER VOLUNTARY, INVOLUNTARY,
THROUGH THE EXERCISE OF ANY RIGHT OF SET-OFF, OR OTHERWISE) IN EXCESS OF ITS PRO
RATA SHARE (OR OTHER SHARE CONTEMPLATED HEREUNDER) THEREOF, SUCH LENDER SHALL
IMMEDIATELY (A) NOTIFY THE ADMINISTRATIVE AGENT OF SUCH FACT, AND (B) PURCHASE
FROM THE OTHER LENDERS SUCH PARTICIPATIONS IN THE LOANS MADE BY THEM, AND/OR
SUCH SUBPARTICIPATIONS IN L/C EXPOSURES HELD BY THEM, AS SHALL BE NECESSARY TO
CAUSE SUCH PURCHASING LENDER TO SHARE THE EXCESS PAYMENT IN RESPECT OF SUCH
LOANS OR SUCH PARTICIPATIONS, AS THE CASE MAY BE, PRO RATA WITH EACH OF THEM;
PROVIDED, HOWEVER, THAT IF ALL OR ANY PORTION OF SUCH EXCESS PAYMENT IS
THEREAFTER RECOVERED FROM THE PURCHASING LENDER UNDER ANY OF THE CIRCUMSTANCES
DESCRIBED IN
57
SECTION 12.06 (INCLUDING PURSUANT TO ANY SETTLEMENT ENTERED INTO BY THE
PURCHASING LENDER IN ITS DISCRETION), SUCH PURCHASE SHALL TO THAT EXTENT BE
RESCINDED AND EACH OTHER LENDER SHALL REPAY TO THE PURCHASING LENDER THE
PURCHASE PRICE PAID THEREFOR, TOGETHER WITH AN AMOUNT EQUAL TO SUCH PAYING
LENDER'S RATABLE SHARE (ACCORDING TO THE PROPORTION OF (I) THE AMOUNT OF SUCH
PAYING LENDER'S REQUIRED REPAYMENT TO (II) THE TOTAL AMOUNT SO RECOVERED FROM
THE PURCHASING LENDER) OF ANY INTEREST OR OTHER AMOUNT PAID OR PAYABLE BY THE
PURCHASING LENDER IN RESPECT OF THE TOTAL AMOUNT SO RECOVERED, WITHOUT FURTHER
INTEREST THEREON.
THE BORROWERS AGREE THAT ANY LENDER SO PURCHASING A
PARTICIPATION FROM ANOTHER LENDER MAY, TO THE FULLEST EXTENT PERMITTED BY LAW,
EXERCISE ALL ITS RIGHTS OF PAYMENT (INCLUDING THE RIGHT OF SET-OFF, BUT SUBJECT
TO SECTION 12.09) WITH RESPECT TO SUCH PARTICIPATION AS FULLY AS IF SUCH LENDER
WERE THE DIRECT CREDITOR OF THE BORROWERS IN THE AMOUNT OF SUCH