SUCH PARTICIPATIONS ARE PURCHASED AND ALL OR ANY PORTION OF THE
PAYMENT GIVING RISE THERETO IS RECOVERED, SUCH PARTICIPATIONS SHALL BE RESCINDED
AND THE PURCHASE PRICE RESTORED TO THE EXTENT OF SUCH RECOVERY, WITHOUT
INTEREST, AND (II) THE PROVISIONS OF THIS PARAGRAPH SHALL NOT BE CONSTRUED TO
APPLY TO ANY PAYMENT MADE BY THE BORROWER PURSUANT TO AND IN ACCORDANCE WITH THE
EXPRESS TERMS OF THIS AGREEMENT OR ANY PAYMENT OBTAINED BY A LENDER AS
CONSIDERATION FOR THE ASSIGNMENT OF OR SALE OF A PARTICIPATION IN ANY OF ITS
LOANS TO ANY ASSIGNEE OR PARTICIPANT, OTHER THAN TO THE BORROWER OR ANY
SUBSIDIARY OR AFFILIATE THEREOF (AS TO WHICH THE PROVISIONS OF THIS PARAGRAPH
SHALL APPLY).
THE BORROWER CONSENTS TO THE FOREGOING AND AGREES, TO THE EXTENT
IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, THAT ANY LENDER ACQUIRING A
PARTICIPATION PURSUANT TO THE FOREGOING ARRANGEMENTS MAY EXERCISE AGAINST THE
BORROWER RIGHTS OF COUNTERCLAIM WITH RESPECT TO SUCH PARTICIPATION AS FULLY AS
IF SUCH LENDER WERE A DIRECT CREDITOR OF THE BORROWER IN THE AMOUNT OF SUCH
PARTICIPATION.
12
(D)
UNLESS THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED NOTICE FROM THE
BORROWER PRIOR TO THE DATE ON WHICH ANY PAYMENT FROM THE BORROWER IS DUE TO THE
ADMINISTRATIVE AGENT FOR THE ACCOUNT OF THE LENDERS HEREUNDER THAT THE BORROWER
WILL NOT MAKE SUCH PAYMENT, THE ADMINISTRATIVE AGENT MAY ASSUME THAT THE
BORROWER HAS MADE SUCH PAYMENT ON SUCH DATE IN ACCORDANCE HEREWITH AND MAY, IN
RELIANCE UPON SUCH ASSUMPTION, DISTRIBUTE TO THE LENDERS THE AMOUNT DUE.
IN
SUCH EVENT, IF THE BORROWER HAS NOT IN FACT MADE SUCH PAYMENT, THEN EACH OF THE
LENDERS SEVERALLY AGREES TO REPAY TO THE ADMINISTRATIVE AGENT FORTHWITH ON
DEMAND THE AMOUNT SO DISTRIBUTED TO SUCH LENDER WITH INTEREST THEREON, FOR EACH
DAY FROM AND INCLUDING THE DATE SUCH AMOUNT IS DISTRIBUTED TO IT TO BUT
EXCLUDING THE DATE OF PAYMENT TO THE ADMINISTRATIVE AGENT, AT THE FEDERAL FUNDS
EFFECTIVE RATE.
(E)
IF ANY LENDER SHALL FAIL TO MAKE ANY PAYMENT REQUIRED TO BE MADE BY IT
PURSUANT TO SECTION 2.04(B) OR 2.14(D), THEN THE ADMINISTRATIVE AGENT MAY, IN
ITS DISCRETION (NOTWITHSTANDING ANY CONTRARY PROVISION HEREOF), APPLY ANY
AMOUNTS THEREAFTER RECEIVED BY THE ADMINISTRATIVE AGENT FOR THE ACCOUNT OF SUCH
LENDER TO SATISFY SUCH LENDER'S OBLIGATIONS UNDER SUCH SECTIONS UNTIL ALL SUCH
UNSATISFIED OBLIGATIONS ARE FULLY PAID.
SECTION 2.15.
MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
IF ANY LENDER
REQUESTS COMPENSATION, OR IS ENTITLED TO PAYMENTS, UNDER SECTION 2.12 OR 2.13 OR
IS AFFECTED IN THE MANNER DESCRIBED IN SECTION 2.17, OR IF ANY LENDER DEFAULTS
IN ITS OBLIGATION TO FUND LOANS HEREUNDER, THEN THE BORROWER MAY, AT ITS SOLE
EXPENSE AND EFFORT (IN THE CASE OF A CLAIM FOR COMPENSATION UNDER, OR PAYMENTS
PURSUANT TO, SECTION 2.12 OR 2.13 OR IN THE CASE OF ILLEGALITY UNDER
SECTION 2.17) OR AT THE EXPENSE AND EFFORT OF ANY SUCH DEFAULTING LENDER, UPON
NOTICE TO SUCH LENDER AND THE ADMINISTRATIVE AGENT, REQUIRE SUCH LENDER TO
ASSIGN AND DELEGATE, WITHOUT