REQUESTED FUNDING DATE FOR THE APPLICABLE BORROWING UNLESS SUCH CONDITION
HAS BEEN WAIVED, OR (2) THE REQUESTED BORROWING WOULD EXCEED THE AVAILABILITY ON
SUCH FUNDING DATE.
(II)
UNLESS AGENT RECEIVES NOTICE FROM A LENDER ON OR PRIOR TO THE
CLOSING DATE OR, WITH RESPECT TO ANY BORROWING AFTER THE CLOSING DATE, PRIOR TO
9:00 A.M. (CALIFORNIA TIME) ON THE DATE OF SUCH BORROWING, THAT SUCH LENDER WILL
NOT MAKE AVAILABLE AS AND WHEN REQUIRED HEREUNDER TO AGENT FOR THE ACCOUNT OF
BORROWER THE AMOUNT OF THAT LENDER'S PRO RATA SHARE OF THE BORROWING, AGENT MAY
ASSUME THAT EACH LENDER HAS MADE OR WILL MAKE SUCH AMOUNT AVAILABLE TO AGENT IN
IMMEDIATELY AVAILABLE FUNDS ON THE FUNDING DATE AND AGENT MAY (BUT SHALL NOT BE
SO REQUIRED), IN RELIANCE UPON SUCH ASSUMPTION, MAKE AVAILABLE TO BORROWER ON
SUCH DATE A CORRESPONDING AMOUNT.
IF AND TO THE EXTENT ANY LENDER SHALL NOT
HAVE MADE ITS FULL AMOUNT AVAILABLE TO AGENT IN IMMEDIATELY AVAILABLE FUNDS AND
AGENT IN SUCH CIRCUMSTANCES HAS MADE AVAILABLE TO BORROWER SUCH AMOUNT, THAT
LENDER SHALL ON THE BUSINESS DAY FOLLOWING SUCH FUNDING DATE MAKE SUCH AMOUNT
AVAILABLE TO AGENT, TOGETHER WITH INTEREST AT THE DEFAULTING LENDER RATE FOR
EACH DAY DURING SUCH PERIOD.
A NOTICE SUBMITTED BY AGENT TO ANY LENDER WITH
RESPECT TO AMOUNTS OWING UNDER THIS SUBSECTION SHALL BE CONCLUSIVE, ABSENT
MANIFEST ERROR.
IF SUCH AMOUNT IS SO MADE AVAILABLE, SUCH PAYMENT TO AGENT
SHALL CONSTITUTE SUCH LENDER'S ADVANCE (OR PORTION OF THE TERM LOAN, AS
APPLICABLE) ON THE DATE OF BORROWING FOR ALL PURPOSES OF THIS AGREEMENT.
IF
SUCH AMOUNT IS NOT MADE AVAILABLE TO AGENT ON THE BUSINESS DAY FOLLOWING THE
FUNDING DATE, AGENT WILL NOTIFY BORROWER OF SUCH FAILURE TO FUND AND, UPON
DEMAND BY AGENT, BORROWER SHALL PAY SUCH AMOUNT TO AGENT FOR AGENT'S ACCOUNT,
TOGETHER WITH INTEREST THEREON FOR EACH DAY ELAPSED SINCE THE DATE OF SUCH
BORROWING, AT A RATE PER ANNUM EQUAL TO THE INTEREST RATE APPLICABLE AT THE TIME
TO THE ADVANCES (OR PORTION OF THE TERM LOAN, AS APPLICABLE) COMPOSING SUCH
BORROWING.
THE FAILURE OF ANY LENDER TO MAKE ANY ADVANCE (OR PORTION OF THE
TERM LOAN, AS APPLICABLE) ON ANY FUNDING DATE SHALL NOT RELIEVE ANY OTHER LENDER
OF ANY OBLIGATION HEREUNDER TO MAKE AN ADVANCE (OR PORTION OF THE TERM LOAN, AS
APPLICABLE) ON SUCH FUNDING DATE, BUT NO LENDER SHALL BE RESPONSIBLE FOR THE
FAILURE OF ANY OTHER LENDER TO MAKE THE ADVANCE (OR PORTION OF THE TERM LOAN, AS
APPLICABLE) TO BE MADE BY SUCH OTHER LENDER ON ANY FUNDING DATE.
34
(III)
AGENT SHALL NOT BE OBLIGATED TO TRANSFER TO A DEFAULTING LENDER
ANY PAYMENTS MADE BY BORROWER TO AGENT FOR THE DEFAULTING LENDER'S BENEFIT, AND,
IN THE ABSENCE OF SUCH TRANSFER TO THE DEFAULTING LENDER, AGENT SHALL TRANSFER
ANY SUCH PAYMENTS TO EACH OTHER NON-DEFAULTING LENDER MEMBER OF THE LENDER GROUP
RATABLY IN ACCORDANCE WITH THEIR COMMITMENTS (BUT ONLY TO THE EXTENT THAT SUCH
DEFAULTING LENDER'S ADVANCE WAS FUNDED BY