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 SETOFF
AND 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.
(D)
UNLESS THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED NOTICE FROM THE
BORROWER PRIOR TO THE DATE ON WHICH ANY PAYMENT IS DUE TO THE ADMINISTRATIVE
AGENT FOR THE ACCOUNT OF THE LENDERS OR AN ISSUING BANK 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 OR AN ISSUING BANK,
AS THE CASE MAY BE, THE AMOUNT DUE.
IN SUCH EVENT, IF THE BORROWER HAS NOT IN
FACT MADE SUCH PAYMENT, THEN EACH OF THE LENDERS OR THE APPLICABLE ISSUING BANK,
AS THE CASE MAY BE, SEVERALLY AGREES TO REPAY TO THE ADMINISTRATIVE AGENT
FORTHWITH ON DEMAND THE AMOUNT SO DISTRIBUTED TO SUCH LENDER OR SUCH ISSUING
BANK 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 GREATER OF THE FEDERAL FUNDS EFFECTIVE RATE AND A RATE DETERMINED
BY THE
55
ADMINISTRATIVE AGENT IN ACCORDANCE WITH BANKING INDUSTRY RULES ON INTERBANK
COMPENSATION.
(E)
IF ANY LENDER SHALL FAIL TO MAKE ANY PAYMENT REQUIRED TO BE MADE BY IT
PURSUANT TO SECTION 2.04(C), 2.05(D), 2.05(F), 2.06(B), 2.16(D), 2.17(D) OR
9.03(C), 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 2.18.
MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(A)
IF ANY
LENDER REQUESTS COMPENSATION UNDER SECTION 2.14, OR IF THE BORROWER IS REQUIRED
TO PAY ANY ADDITIONAL AMOUNT TO ANY LENDER OR TO ANY GOVERNMENTAL AUTHORITY FOR
THE ACCOUNT OF ANY LENDER PURSUANT TO SECTION 2.16, THEN SUCH LENDER SHALL USE
COMMERCIALLY REASONABLE EFFORTS TO DESIGNATE A DIFFERENT LENDING OFFICE FOR
FUNDING OR BOOKING ITS LOANS HEREUNDER OR TO ASSIGN AND DELEGATE ITS RIGHTS AND
OBLIGATIONS HEREUNDER TO ANOTHER OF ITS OFFICES, BRANCHES OR AFFILIATES IF, IN
THE JUDGMENT OF SUCH LENDER, SUCH DESIGNATION OR ASSIGNMENT AND DELEGATION
(I) WOULD ELIMINATE OR REDUCE AMOUNTS PAYABLE PURSUANT TO SECTION 2.14 OR 2.16,
AS THE CASE MAY BE, IN THE FUTURE AND (II) WOULD NOT SUBJECT SUCH LENDER TO ANY
UNREIMBURSED COST OR EXPENSE AND WOULD NOT OTHERWISE BE DISADVANTAGEOUS TO SUCH
LENDER.
THE BORROWER HEREBY AGREES TO PAY ALL REASONABLE COSTS AND EXPENSES
INCURRED BY ANY LENDER IN CONNECTION WITH ANY SUCH DESIGNATION OR ASSIGNMENT AND
DELEGATION.
(B)
IF (I) ANY LENDER