ADMINISTRATIVE AGENT MAY ASSUME THAT THE
BORROWERS HAS MADE SUCH PAYMENT ON SUCH DATE IN ACCORDANCE HEREWITH AND MAY, IN
RELIANCE UPON SUCH ASSUMPTION, DISTRIBUTE TO THE LENDERS, AS THE CASE MAY BE,
THE AMOUNT DUE. IN SUCH EVENT, IF THE
36
BORROWERS HAVE NOT IN FACT MADE SUCH PAYMENT, THEN EACH OF THE LENDERS, AS THE
CASE MAY BE, SEVERALLY AGREES TO REPAY TO THE ADMINISTRATIVE AGENT FORTHWITH ON
DEMAND THE AMOUNT SO DISTRIBUTED TO SUCH LENDER, IN IMMEDIATELY AVAILABLE FUNDS
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 RATE AND A RATE DETERMINED BY THE
ADMINISTRATIVE AGENT IN ACCORDANCE WITH BANKING INDUSTRY RULES ON INTERBANK
COMPENSATION.
A notice of the Administrative Agent to any Lender or the Borrowers with respect
to any amount owing under this subsection (b) shall be conclusive, absent
manifest error.
(C)
FAILURE TO SATISFY CONDITIONS PRECEDENT. IF
ANY LENDER MAKES AVAILABLE TO THE ADMINISTRATIVE AGENT FUNDS FOR ANY LOAN TO BE
MADE BY SUCH LENDER AS PROVIDED IN THE FOREGOING PROVISIONS OF THIS ARTICLE II,
AND SUCH FUNDS ARE NOT MADE AVAILABLE TO THE BORROWERS BY THE ADMINISTRATIVE
AGENT BECAUSE THE CONDITIONS TO THE APPLICABLE BORROWING SET FORTH IN ARTICLE IV
ARE NOT SATISFIED OR WAIVED IN ACCORDANCE WITH THE TERMS HEREOF, THE
ADMINISTRATIVE AGENT SHALL RETURN SUCH FUNDS (IN LIKE FUNDS AS RECEIVED FROM
SUCH LENDER) TO SUCH LENDER, WITHOUT INTEREST.
(D)
OBLIGATIONS OF LENDERS SEVERAL. THE
OBLIGATIONS OF THE LENDERS HEREUNDER TO MAKE REVOLVING LOANS, TO FUND
PARTICIPATIONS IN SWINGLINE LOANS AND TO MAKE PAYMENTS PURSUANT TO
SECTION 10.04(C) ARE SEVERAL AND NOT JOINT. THE FAILURE OF ANY LENDER TO MAKE
ANY REVOLVING LOAN, TO FUND ANY SUCH PARTICIPATION OR TO MAKE ANY PAYMENT UNDER
SECTION 10.04(C) ON ANY DATE REQUIRED HEREUNDER SHALL NOT RELIEVE ANY OTHER
LENDER OF ITS CORRESPONDING OBLIGATION TO DO SO ON SUCH DATE, AND NO LENDER
SHALL BE RESPONSIBLE FOR THE FAILURE OF ANY OTHER LENDER TO SO MAKE ITS
REVOLVING LOAN, TO PURCHASE ITS PARTICIPATION OR TO MAKE ITS PAYMENT UNDER
SECTION 10.04(C).
(E)
FUNDING SOURCE. NOTHING HEREIN SHALL BE
DEEMED TO OBLIGATE ANY LENDER TO OBTAIN THE FUNDS FOR ANY LOAN IN ANY PARTICULAR
PLACE OR MANNER OR TO CONSTITUTE A REPRESENTATION BY ANY LENDER THAT IT HAS
OBTAINED OR WILL OBTAIN THE FUNDS FOR ANY LOAN IN ANY PARTICULAR PLACE OR
MANNER.
2.12
SHARING OF PAYMENTS BY LENDERS. IF ANY LENDER SHALL,
BY EXERCISING ANY RIGHT OF SETOFF OR COUNTERCLAIM OR OTHERWISE, OBTAIN PAYMENT
IN RESPECT OF ANY PRINCIPAL OF OR INTEREST ON ANY OF THE REVOLVING LOANS MADE BY
IT, OR THE PARTICIPATIONS IN SWINGLINE LOANS HELD BY IT RESULTING IN SUCH
LENDER'S RECEIVING PAYMENT OF A PROPORTION OF THE AGGREGATE AMOUNT OF SUCH
REVOLVING LOANS OR PARTICIPATIONS AND ACCRUED INTEREST THEREON GREATER THAN ITS
PRO RATA SHARE THEREOF AS PROVIDED HEREIN, THEN THE LENDER