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SHALL BE RESCINDED AND THE PURCHASE PRICE RESTORED TO THE EXTENT OF SUCH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 A BORROWER PURSUANT TO AND IN
ACCORDANCE WITH THE EXPRESS TERMS OF THIS CREDIT 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 COMPANY OR ANY SUBSIDIARY OR AFFILIATE THEREOF (AS TO WHICH THE PROVISIONS
OF THIS PARAGRAPH SHALL APPLY). EACH 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 SUCH BORROWER RIGHTS OF SETOFF AND COUNTERCLAIM WITH RESPECT TO
SUCH PARTICIPATION AS FULLY AS IF SUCH LENDER WERE A DIRECT CREDITOR OF SUCH
BORROWER IN THE AMOUNT OF SUCH PARTICIPATION.
(D)
UNLESS THE ADMINISTRATIVE AGENT SHALL HAVE
RECEIVED NOTICE FROM THE COMPANY PRIOR TO THE DATE ON WHICH ANY PAYMENT IS DUE
FROM A BORROWER TO THE ADMINISTRATIVE AGENT
22
FOR THE ACCOUNT OF THE APPLICABLE CREDIT PARTIES HEREUNDER THAT SUCH BORROWER
WILL NOT MAKE SUCH PAYMENT, THE ADMINISTRATIVE AGENT MAY ASSUME THAT SUCH
BORROWER HAS MADE SUCH PAYMENT ON SUCH DATE IN ACCORDANCE HEREWITH AND MAY, IN
RELIANCE UPON SUCH ASSUMPTION, DISTRIBUTE TO SUCH CREDIT PARTIES THE AMOUNT DUE.
IN SUCH EVENT, IF SUCH BORROWER HAS NOT IN FACT MADE SUCH PAYMENT, THEN EACH
SUCH CREDIT PARTY SEVERALLY AGREES TO REPAY TO THE ADMINISTRATIVE AGENT
FORTHWITH ON DEMAND THE AMOUNT SO DISTRIBUTED TO SUCH CREDIT PARTY 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
ADMINISTRATIVE AGENT IN ACCORDANCE WITH GENERALLY RECOGNIZED BANKING INDUSTRY
PRACTICES ON INTERBANK COMPENSATION.
(E)
IF ANY CREDIT PARTY SHALL FAIL TO MAKE ANY
PAYMENT REQUIRED TO BE MADE BY IT PURSUANT TO SECTION 2.4(B), 2.9(D) OR 10.3(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 CREDIT PARTY TO SATISFY SUCH CREDIT
PARTY'S OBLIGATIONS UNDER SUCH SECTIONS UNTIL ALL SUCH UNSATISFIED OBLIGATIONS
ARE FULLY PAID.
ARTICLE 3.
INTEREST, FEES, YIELD PROTECTION, ETC.
SECTION 3.1
INTEREST.
(A)
THE LOANS COMPRISING EACH ABR BORROWING
SHALL BEAR INTEREST AT THE ALTERNATE BASE RATE AND THE LOANS COMPRISING EACH
EURODOLLAR BORROWING SHALL BEAR INTEREST AT THE ADJUSTED LIBO RATE FOR THE
INTEREST PERIOD IN EFFECT FOR SUCH BORROWING PLUS THE APPLICABLE MARGIN.
(B)
NOTWITHSTANDING THE FOREGOING, IF ANY
PRINCIPAL OF OR INTEREST ON ANY LOAN OR ANY FEE OR OTHER AMOUNT PAYABLE BY ANY
BORROWER HEREUNDER IS NOT PAID WHEN DUE, WHETHER AT STATED MATURITY,