NOTICE OF THE ADMINISTRATIVE AGENT'S RECEIPT OF A NOTICE OF BORROWING
AND, IF EURODOLLAR RATE LOANS ARE PROPERLY REQUESTED IN SUCH NOTICE OF
BORROWING, PROMPT NOTICE OF THE APPLICABLE INTEREST RATE.
EACH LENDER SHALL,
BEFORE 1:00 P.M. ON THE DATE OF THE PROPOSED BORROWING, MAKE AVAILABLE TO THE
ADMINISTRATIVE AGENT AT ITS ADDRESS REFERRED TO IN SECTION 11.11, SUCH LENDER'S
PRO RATA SHARE OF SUCH PROPOSED BORROWING.
UPON FULFILLMENT OR DUE WAIVER (I)
ON THE CLOSING DATE, OF THE APPLICABLE CONDITIONS SET FORTH IN SECTION 3.1 AND
(II) ON THE CLOSING DATE AND ANY TIME THEREAFTER, OF THE APPLICABLE CONDITIONS
SET FORTH IN SECTION 3.2, THE ADMINISTRATIVE AGENT SHALL PROMPTLY MAKE SUCH
FUNDS AVAILABLE TO THE BORROWER.
(C)
NON-FUNDING LENDERS; PROCEDURES.
(I)
RESPONSIBILITY.
THE FAILURE OF ANY NON-FUNDING LENDER TO
MAKE ANY LOAN, TO FUND ANY PURCHASE OF ANY PARTICIPATION TO BE MADE OR FUNDED BY
IT, OR TO MAKE ANY PAYMENT REQUIRED BY IT HEREUNDER ON THE DATE SPECIFIED
THEREFOR SHALL NOT RELIEVE ANY OTHER LENDER OF ITS OBLIGATIONS TO MAKE SUCH
LOAN, FUND THE PURCHASE OF ANY SUCH PARTICIPATION, OR MAKE ANY OTHER PAYMENT
REQUIRED HEREUNDER ON SUCH DATE, AND NEITHER THE ADMINISTRATIVE AGENT NOR, OTHER
THAN AS EXPRESSLY SET FORTH HEREIN, ANY OTHER LENDER SHALL BE RESPONSIBLE FOR
THE FAILURE OF ANY NON-FUNDING LENDER TO MAKE A LOAN, FUND THE PURCHASE OF A
PARTICIPATION OR MAKE ANY OTHER PAYMENT REQUIRED HEREUNDER.
44
(II)
VOTING RIGHTS.
NOTWITHSTANDING ANYTHING SET FORTH HEREIN TO
THE CONTRARY, INCLUDING SECTION 11.1, A NON-FUNDING LENDER SHALL NOT HAVE ANY
VOTING OR CONSENT RIGHTS UNDER OR WITH RESPECT TO ANY LOAN DOCUMENT OR
CONSTITUTE A "LENDER", "TERM LOAN LENDER" OR A "REVOLVING CREDIT LENDER" (OR BE,
OR HAVE ITS LOANS AND COMMITMENTS, INCLUDED IN THE DETERMINATION OF "REQUIRED
LENDERS", "REQUIRED TERM LENDERS", "REQUIRED REVOLVING LENDERS", "SUPERMAJORITY
REVOLVING LENDERS" OR "LENDERS DIRECTLY AFFECTED" PURSUANT TO SECTION 11.1) FOR
ANY VOTING OR CONSENT RIGHTS UNDER OR WITH RESPECT TO ANY LOAN DOCUMENT,
PROVIDED THAT (A) THE COMMITMENT OF A NON-FUNDING LENDER MAY NOT BE INCREASED OR
EXTENDED, (B) THE PRINCIPAL OF A NON-FUNDING LENDER'S LOANS MAY NOT BE REDUCED
OR FORGIVEN, AND (C) THE INTEREST RATE APPLICABLE TO OBLIGATIONS OWING TO A
NON-FUNDING LENDER MAY NOT BE REDUCED IN SUCH A MANNER THAT BY ITS TERMS AFFECTS
SUCH NON-FUNDING LENDER MORE ADVERSELY THAN OTHER LENDERS IN SUCH FACILITY, IN
EACH CASE WITHOUT THE CONSENT OF SUCH NON-FUNDING LENDER.
MOREOVER, FOR THE
PURPOSES OF DETERMINING REQUIRED LENDERS, REQUIRED TERM LENDERS, REQUIRED
REVOLVING LENDERS AND SUPERMAJORITY REVOLVING LENDERS, THE LOANS, L/C
OBLIGATIONS, AND COMMITMENTS HELD BY NON-FUNDING LENDERS SHALL BE EXCLUDED FROM
THE TOTAL LOANS AND COMMITMENTS OUTSTANDING.
(iii)
Borrower Payments to a Non-Funding Lender. The Administrative Agent
shall be entitled to hold, in a non-interest bearing account, all portions of
any payments received by the Administrative Agent for the benefit of any
Non-Funding Lender pursuant to this Agreement as cash collateral. The
Administrative Agent is hereby authorized to use such cash collateral to pay in
full