PRICE RESTORED TO THE EXTENT OF SUCH RECOVERY,
WITHOUT INTEREST, AND
(II)
THE PROVISIONS OF THIS PARAGRAPH SHALL NOT BE CONSTRUED TO APPLY
TO (X) ANY PAYMENT MADE BY BORROWER 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 TO ANY ASSIGNEE OR PARTICIPANT, OTHER THAN TO BORROWER OR ANY SUBSIDIARY
THEREOF (AS TO WHICH THE PROVISIONS OF THIS PARAGRAPH SHALL APPLY).
Each Loan Party 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
Borrower rights of setoff and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of each Loan Party in the amount
of such participation.
Section 2.33
Making or Maintaining Eurodollar Rate Loans.
(A)
INABILITY TO DETERMINE APPLICABLE INTEREST RATE. IN THE EVENT THAT
ADMINISTRATIVE AGENT SHALL HAVE DETERMINED (WHICH DETERMINATION SHALL BE FINAL
AND CONCLUSIVE AND BINDING UPON ALL PARTIES HERETO), ON ANY INTEREST RATE
DETERMINATION DATE WITH RESPECT TO ANY EURODOLLAR RATE LOANS, THAT BY REASON OF
CIRCUMSTANCES AFFECTING THE LONDON INTERBANK MARKET ADEQUATE AND FAIR MEANS DO
NOT EXIST FOR ASCERTAINING THE INTEREST RATE APPLICABLE TO SUCH LOANS ON THE
BASIS PROVIDED FOR IN THE DEFINITION OF ADJUSTED EURODOLLAR RATE, ADMINISTRATIVE
AGENT SHALL ON SUCH DATE GIVE NOTICE (BY TELEFACSIMILE OR BY TELEPHONE CONFIRMED
IN WRITING) TO BORROWER AND EACH LENDER OF SUCH DETERMINATION, WHEREUPON (I) NO
LOANS MAY BE MADE AS, OR CONVERTED TO, EURODOLLAR RATE LOANS UNTIL SUCH TIME AS
ADMINISTRATIVE AGENT NOTIFIES BORROWER AND LENDERS THAT THE CIRCUMSTANCES GIVING
RISE TO SUCH NOTICE NO LONGER EXIST, AND (II) ANY FUNDING NOTICE OR
CONVERSION/CONTINUATION NOTICE GIVEN BY BORROWER WITH RESPECT TO THE LOANS IN
RESPECT OF WHICH SUCH DETERMINATION WAS MADE SHALL BE DEEMED TO BE RESCINDED BY
BORROWER UNLESS BORROWER DELIVERS WRITTEN NOTICE TO ADMINISTRATIVE AGENT THAT IT
DESIRES TO HAVE THE LOANS FUNDED OR CONTINUED, AS THE CASE MAY BE, AS BASE RATE
LOANS, IN WHICH CASE THEY SHALL BE SO FUNDED OR CONTINUED, AS THE CASE MAY BE.
(B)
ILLEGALITY OR IMPRACTICABILITY OF EURODOLLAR RATE LOANS. IN THE
EVENT THAT ON ANY DATE ANY LENDER SHALL HAVE DETERMINED (WHICH DETERMINATION
SHALL BE FINAL AND CONCLUSIVE AND BINDING UPON ALL PARTIES HERETO BUT SHALL BE
MADE ONLY AFTER CONSULTATION WITH BORROWER AND ADMINISTRATIVE AGENT) THAT THE
MAKING, MAINTAINING OR CONTINUATION OF ITS EURODOLLAR RATE LOANS (I) HAS BECOME
UNLAWFUL AS A RESULT OF COMPLIANCE BY SUCH LENDER IN GOOD FAITH WITH ANY LAW,
TREATY, GOVERNMENTAL RULE, REGULATION, GUIDELINE OR ORDER (OR WOULD CONFLICT
WITH ANY SUCH TREATY, GOVERNMENTAL RULE, REGULATION, GUIDELINE OR ORDER NOT
HAVING THE FORCE OF LAW EVEN THOUGH THE FAILURE TO COMPLY THEREWITH WOULD NOT BE
UNLAWFUL), OR (II) HAS BECOME IMPRACTICABLE, AS A RESULT OF CONTINGENCIES
OCCURRING AFTER THE DATE