LENDER
OF ITS DUTIES AND OBLIGATIONS HEREUNDER, OR TO RELIEVE OR EXCUSE THE PERFORMANCE
BY BORROWERS OF THEIR DUTIES AND OBLIGATIONS HEREUNDER TO AGENT OR TO THE
LENDERS OTHER THAN SUCH DEFAULTING LENDER.
ANY SUCH FAILURE TO FUND BY ANY
DEFAULTING LENDER SHALL CONSTITUTE A MATERIAL BREACH BY SUCH DEFAULTING LENDER
OF THIS AGREEMENT AND SHALL ENTITLE ADMINISTRATIVE BORROWER AT ITS OPTION, UPON
WRITTEN NOTICE TO AGENT, TO ARRANGE FOR A SUBSTITUTE LENDER TO ASSUME THE
COMMITMENT OF SUCH DEFAULTING LENDER, SUCH SUBSTITUTE LENDER TO BE REASONABLY
ACCEPTABLE TO AGENT.
IN CONNECTION WITH THE ARRANGEMENT OF SUCH A SUBSTITUTE
LENDER, THE DEFAULTING LENDER SHALL HAVE NO RIGHT TO REFUSE TO BE REPLACED
HEREUNDER, AND AGREES TO EXECUTE AND DELIVER A COMPLETED FORM OF ASSIGNMENT AND
ACCEPTANCE IN FAVOR OF THE SUBSTITUTE LENDER (AND AGREES THAT IT SHALL BE DEEMED
TO HAVE EXECUTED AND DELIVERED SUCH DOCUMENT IF IT FAILS TO DO SO) SUBJECT ONLY
TO BEING REPAID ITS SHARE OF THE OUTSTANDING OBLIGATIONS (OTHER THAN BANK
PRODUCT OBLIGATIONS, BUT INCLUDING AN ASSUMPTION OF ITS PRO RATA SHARE OF THE
RISK PARTICIPATION LIABILITY) WITHOUT ANY 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'
5
rights or remedies against any such Defaulting Lender arising out of or in
relation to such failure to fund.
(D)
PROTECTIVE ADVANCES AND OPTIONAL OVERADVANCES.
(I)
AGENT HEREBY IS AUTHORIZED BY BORROWERS
AND THE LENDERS, FROM TIME TO TIME IN AGENT'S SOLE DISCRETION, (A) AFTER THE
OCCURRENCE AND DURING THE CONTINUANCE OF A DEFAULT OR AN EVENT OF DEFAULT, OR
(B) AT ANY TIME THAT ANY OF THE OTHER APPLICABLE CONDITIONS PRECEDENT SET FORTH
IN SECTION 3 ARE NOT SATISFIED, TO MAKE ADVANCES TO BORROWERS ON BEHALF OF THE
LENDERS THAT AGENT, IN ITS PERMITTED DISCRETION DEEMS NECESSARY OR DESIRABLE (1)
TO PRESERVE OR PROTECT THE COLLATERAL, OR ANY PORTION THEREOF, (2) TO ENHANCE
THE LIKELIHOOD OF REPAYMENT OF THE OBLIGATIONS (OTHER THAN THE BANK PRODUCT
OBLIGATIONS), OR (3) TO PAY ANY OTHER AMOUNT CHARGEABLE TO BORROWERS PURSUANT TO
THE TERMS OF THIS AGREEMENT, INCLUDING LENDER GROUP EXPENSES AND THE COSTS,
FEES, AND EXPENSES DESCRIBED IN SECTION 9 (ANY OF THE ADVANCES DESCRIBED IN THIS
SECTION 2.3(D)(I) SHALL BE REFERRED TO AS "PROTECTIVE ADVANCES").
(II)
ANY CONTRARY PROVISION OF THIS AGREEMENT
NOTWITHSTANDING, THE LENDERS HEREBY AUTHORIZE AGENT OR SWING LENDER, AS
APPLICABLE, AND EITHER AGENT OR SWING LENDER, AS APPLICABLE, MAY, BUT IS NOT
OBLIGATED TO, KNOWINGLY AND INTENTIONALLY, CONTINUE TO MAKE ADVANCES (INCLUDING
SWING LOANS) TO BORROWERS NOTWITHSTANDING THAT AN OVERADVANCE EXISTS OR THEREBY
WOULD BE CREATED, SO LONG AS (A) AFTER GIVING EFFECT TO SUCH ADVANCES, THE
OUTSTANDING REVOLVER USAGE DOES NOT EXCEED THE BORROWING BASE BY MORE THAN
$1,000,000, AND (B) AFTER GIVING EFFECT TO SUCH ADVANCES, THE OUTSTANDING
REVOLVER USAGE (EXCEPT FOR AND EXCLUDING AMOUNTS CHARGED TO THE LOAN ACCOUNT FOR
INTEREST, FEES, OR