LESS THE COSTS
AND EXPENSES (INCLUDING, REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS) INCURRED
BY SUCH LENDER IN CONNECTION WITH SUCH REALIZATION, EXERCISE, CLAIM OR ACTION,
PRO RATA WITH ALL OTHER LENDERS IN PROPORTION TO THEIR RESPECTIVE APPLICABLE
PERCENTAGE FOR
35
SUCH LOANS, AND SUCH SHARING SHALL BE DEEMED A PURCHASE (WITHOUT RECOURSE) BY
SUCH SHARING PARTY OF PARTICIPANT INTERESTS IN SUCH LOANS OR SUCH FEES, AS THE
CASE MAY BE, OWED TO THE RECIPIENTS OF SUCH SHARED PAYMENTS TO THE EXTENT OF
SUCH SHARED PAYMENTS; PROVIDED, HOWEVER, THAT (I) IF ALL OR ANY PORTION OF SUCH
EXCESS AMOUNT IS THEREAFTER RECOVERED FROM SUCH LENDER, SUCH PURCHASE SHALL BE
RESCINDED AND THE PURCHASE PRICE RESTORED TO THE EXTENT OF SUCH RECOVERY, BUT
WITHOUT INTEREST AND (II) THE PROVISIONS OF THIS PARAGRAPH SHALL NOT BE
CONSTRUED TO APPLY TO (X) ANY PAYMENT MADE BY THE BORROWERS PURSUANT TO AND IN
ACCORDANCE WITH THE EXPRESS TERMS OF THIS AGREEMENT OR (Y) ANY PAYMENT OBTAINED
BY A LENDER AS CONSIDERATION FOR THE ASSIGNMENT OF OR SALE OF A PARTICIPATION IN
ANY OF ITS LOANS OR LETTER OF CREDIT PARTICIPATIONS TO ANY ASSIGNEE OR
PARTICIPANT, OTHER THAN TO THE BORROWERS OR ANY SUBSIDIARY THEREOF (AS TO WHICH
THE PROVISIONS OF THIS PARAGRAPH SHALL APPLY).
THE BORROWERS CONSENT TO THE
FOREGOING AND AGREE, 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 BORROWERS RIGHTS OF SETOFF AND
COUNTERCLAIM WITH RESPECT TO SUCH PARTICIPATION AS FULLY AS IF SUCH LENDER WERE
A DIRECT CREDITOR OF THE BORROWERS IN THE AMOUNT OF SUCH PARTICIPATION.
2.10
LIBOR INDEMNITY.
IF THE BORROWERS FOR ANY REASON MAKE ANY PAYMENT
OF PRINCIPAL WITH RESPECT TO ANY LIBOR LOAN ON ANY DAY OTHER THAN THE LAST DAY
OF AN INTEREST PERIOD APPLICABLE TO SUCH LIBOR LOAN, OR FAIL TO BORROW OR
CONTINUE OR CONVERT TO A LIBOR LOAN AFTER GIVING A NOTICE OF BORROWING OR
CONVERSION THEREOF PURSUANT TO SECTION 2.3, OR FAIL TO PREPAY A LIBOR LOAN AFTER
HAVING GIVEN NOTICE THEREOF, THE BORROWERS SHALL PAY TO THE ADMINISTRATIVE AGENT
FOR THE BENEFIT OF THE LENDERS ANY AMOUNT REQUIRED TO COMPENSATE THE LENDERS FOR
ANY ADDITIONAL LOSSES, COSTS OR EXPENSES WHICH THEY MAY REASONABLY INCUR AS A
RESULT OF SUCH PAYMENT OR FAILURE, INCLUDING, WITHOUT LIMITATION, ANY LOSS
(INCLUDING LOSS OF ANTICIPATED PROFITS), COSTS OR EXPENSE INCURRED BY REASON OF
THE LIQUIDATION OR RE-EMPLOYMENT OF DEPOSITS OR OTHER FUNDS REQUIRED BY THE
LENDERS TO FUND OR MAINTAIN SUCH LIBOR LOAN.
WITHOUT LIMITING THE FOREGOING,
THE BORROWERS SHALL PAY TO THE ADMINISTRATIVE AGENT A "YIELD MAINTENANCE FEE"
FOR THE BENEFIT OF THE LENDERS IN AN AMOUNT COMPUTED AS FOLLOWS:
THE CURRENT
RATE FOR UNITED STATES TREASURY SECURITIES (BILLS ON A DISCOUNTED BASIS SHALL BE
CONVERTED TO A BOND EQUIVALENT) WITH A MATURITY DATE CLOSEST TO THE TERM CHOSEN
PURSUANT TO THE FIXED RATE ELECTION AS TO WHICH THE PREPAYMENT IS MADE, SHALL BE
SUBTRACTED FROM THE