FAILS TO DO SO) SUBJECT ONLY
TO BEING REPAID ITS SHARE OF THE OUTSTANDING OBLIGATIONS WITHOUT ANY
5
PREMIUM OR PENALTY OF ANY KIND WHATSOEVER; PROVIDED HOWEVER, THAT ANY SUCH
ASSUMPTION OF THE COMMITMENT OF SUCH DEFAULTING LENDER SHALL NOT BE DEEMED TO
CONSTITUTE A WAIVER OF ANY OF THE LENDER GROUP'S OR BORROWERS' RIGHTS OR
REMEDIES AGAINST ANY SUCH DEFAULTING LENDER ARISING OUT OF OR IN RELATION TO
SUCH FAILURE TO FUND.
(B)
NOTATION. AGENT SHALL RECORD ON ITS BOOKS THE PRINCIPAL AMOUNT OF
EACH OF THE ADVANCES AND TERM LOANS OWING TO EACH LENDER, AND THE INTERESTS
THEREIN OF EACH LENDER, FROM TIME TO TIME AND SUCH RECORDS SHALL, ABSENT
MANIFEST ERROR, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF AGENT,
CONCLUSIVELY BE PRESUMED TO BE CORRECT AND ACCURATE.
(C)
LENDERS' FAILURE TO PERFORM. ALL LOANS SHALL BE MADE BY THE
LENDERS CONTEMPORANEOUSLY AND IN ACCORDANCE WITH THEIR PRO RATA SHARES AND
SUBJECT TO SECTIONS 2.1 AND 2.2. IT IS UNDERSTOOD THAT (I) NO LENDER SHALL BE
RESPONSIBLE FOR ANY FAILURE BY ANY OTHER LENDER TO PERFORM ITS OBLIGATION TO
MAKE ANY PORTION OF ANY LOAN (OR OTHER EXTENSIONS OF CREDIT) HEREUNDER, NOR
SHALL ANY COMMITMENT OF ANY LENDER BE INCREASED OR DECREASED AS A RESULT OF ANY
FAILURE BY ANY OTHER LENDER TO PERFORM ITS OBLIGATIONS HEREUNDER, AND (II) NO
FAILURE BY ANY LENDER TO PERFORM ITS OBLIGATIONS HEREUNDER SHALL EXCUSE ANY
OTHER LENDER FROM ITS OBLIGATIONS HEREUNDER.
(D)
SETTLEMENT. IT IS AGREED THAT EACH LENDER'S FUNDED PORTION OF THE
ADVANCES IS INTENDED BY THE LENDERS TO EQUAL, AT ALL TIMES, TO SUCH LENDER'S PRO
RATA SHARE OF THE OUTSTANDING ADVANCES. SUCH AGREEMENT NOTWITHSTANDING, AGENT
AND THE OTHER LENDERS AGREE (WHICH AGREEMENT SHALL NOT BE FOR THE BENEFIT OF
BORROWERS) THAT IN ORDER TO FACILITATE THE ADMINISTRATION OF THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS, SETTLEMENT AMONG THE LENDERS AS TO THE ADVANCES SHALL
TAKE PLACE ON A PERIODIC BASIS IN ACCORDANCE WITH THE FOLLOWING PROVISIONS:
(I)
AGENT SHALL REQUEST SETTLEMENT ("SETTLEMENT") WITH THE LENDERS ON
A WEEKLY BASIS, OR ON A MORE FREQUENT BASIS IF SO DETERMINED BY AGENT, BY
NOTIFYING THE LENDERS BY TELECOPY, TELEPHONE, OR OTHER SIMILAR FORM OF
TRANSMISSION, OF SUCH REQUESTED SETTLEMENT, NO LATER THAN 11:00 A.M. (CALIFORNIA
TIME) ON THE BUSINESS DAY IMMEDIATELY PRIOR TO THE DATE OF SUCH REQUESTED
SETTLEMENT (THE DATE OF SUCH REQUESTED SETTLEMENT BEING THE "SETTLEMENT DATE").
SUCH NOTICE OF A SETTLEMENT DATE SHALL INCLUDE A SUMMARY STATEMENT OF THE AMOUNT
OF OUTSTANDING ADVANCES FOR THE PERIOD SINCE THE PRIOR SETTLEMENT DATE. SUBJECT
TO THE TERMS AND CONDITIONS CONTAINED HEREIN:
(Y) IF A LENDER'S BALANCE OF THE
ADVANCES EXCEEDS SUCH LENDER'S PRO RATA SHARE OF THE ADVANCES AS OF A SETTLEMENT
DATE, THEN AGENT SHALL, BY NO LATER THAN 12:00 P.M. (CALIFORNIA TIME) ON THE
SETTLEMENT DATE, TRANSFER IN IMMEDIATELY AVAILABLE FUNDS TO A DEPOSIT ACCOUNT OF
SUCH LENDER (AS SUCH LENDER MAY DESIGNATE), AN AMOUNT SUCH THAT EACH SUCH LENDER
SHALL, UPON RECEIPT OF