AGENT SUBMITTED TO ANY LENDER WITH RESPECT TO ANY AMOUNTS OWING
UNDER THIS SUBSECTION 3.8(B) SHALL BE CONCLUSIVE IN THE ABSENCE OF MANIFEST
ERROR.
IF SUCH LENDER'S REVOLVING COMMITMENT PERCENTAGE OF SUCH BORROWING IS
NOT MADE AVAILABLE TO THE ADMINISTRATIVE AGENT BY SUCH LENDER WITHIN THREE
BUSINESS DAYS OF SUCH BORROWING DATE, (X) THE ADMINISTRATIVE AGENT SHALL NOTIFY
THE PARENT BORROWER OF THE FAILURE OF SUCH LENDER TO MAKE SUCH AMOUNT AVAILABLE
TO THE ADMINISTRATIVE AGENT AND THE ADMINISTRATIVE AGENT SHALL ALSO BE ENTITLED
TO RECOVER SUCH AMOUNT WITH INTEREST THEREON AT THE RATE PER ANNUM APPLICABLE
TO, IN THE CASE OF LOANS TO BE MADE IN DOLLARS, ABR LOANS HEREUNDER OR, IN THE
CASE OF LOANS TO BE MADE IN ANY DESIGNATED FOREIGN CURRENCY, THE RATE PER ANNUM
APPLICABLE TO SUCH LOANS PURSUANT TO SUBSECTION 3.1, IN EITHER CASE ON DEMAND,
FROM SUCH BORROWER AND (Y) THEN SUCH BORROWER MAY, WITHOUT WAIVING OR LIMITING
ANY RIGHTS OR REMEDIES IT MAY HAVE AGAINST SUCH LENDER HEREUNDER OR UNDER
APPLICABLE LAW OR OTHERWISE, BORROW A LIKE AMOUNT ON AN UNSECURED BASIS FROM ANY
COMMERCIAL BANK FOR A PERIOD ENDING ON THE DATE UPON WHICH SUCH LENDER DOES IN
FACT MAKE SUCH BORROWING AVAILABLE, PROVIDED THAT AT THE TIME SUCH BORROWING IS
MADE AND AT ALL TIMES WHILE SUCH AMOUNT IS OUTSTANDING SUCH BORROWER WOULD BE
PERMITTED TO BORROW SUCH AMOUNT PURSUANT TO SUBSECTION 2.1 AND/OR (II) TAKE ANY
ACTION PERMITTED BY THE FOLLOWING SUBSECTION 3.8(C).
(C)
NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT:
(I)
IF AT ANY TIME A LENDER SHALL NOT MAKE A REVOLVING LOAN REQUIRED
TO BE MADE BY IT HEREUNDER (ANY SUCH LENDER, A "DEFAULTING LENDER"), THE PARENT
BORROWER SHALL HAVE THE RIGHT TO SEEK ONE OR MORE PERSONS REASONABLY
SATISFACTORY TO THE ADMINISTRATIVE AGENT AND THE PARENT BORROWER TO EACH BECOME
A SUBSTITUTE LENDER AND
83
ASSUME ALL OR PART OF THE REVOLVING COMMITMENT OF SUCH DEFAULTING LENDER.
IN
SUCH EVENT, THE PARENT BORROWER, THE ADMINISTRATIVE AGENT AND ANY SUCH
SUBSTITUTE LENDER SHALL EXECUTE AND DELIVER, AND SUCH DEFAULTING LENDER SHALL
THEREUPON BE DEEMED TO HAVE EXECUTED AND DELIVERED, AN APPROPRIATELY COMPLETED
ASSIGNMENT AND ACCEPTANCE TO EFFECT SUCH SUBSTITUTION.
(II)
IN DETERMINING THE REQUIRED LENDERS, ANY LENDER THAT AT THE TIME
IS A DEFAULTING LENDER (AND THE REVOLVING LOANS AND/OR REVOLVING COMMITMENT OF
SUCH DEFAULTING LENDER) SHALL BE EXCLUDED AND DISREGARDED.
NO COMMITMENT FEE
SHALL ACCRUE FOR THE ACCOUNT OF A DEFAULTING LENDER SO LONG AS SUCH LENDER SHALL
BE A DEFAULTING LENDER.
(III)
IF AT ANY TIME ANY BORROWER SHALL BE REQUIRED TO MAKE ANY PAYMENT
UNDER ANY LOAN DOCUMENT TO OR FOR THE ACCOUNT OF A DEFAULTING LENDER, THEN SUCH
BORROWER, SO LONG AS IT IS THEN PERMITTED TO BORROW REVOLVING LOANS HEREUNDER,
MAY SET OFF AND OTHERWISE APPLY ITS OBLIGATION TO MAKE SUCH PAYMENT AGAINST THE
OBLIGATION OF SUCH DEFAULTING LENDER TO MAKE SUCH DEFAULTED LOAN.
IN SUCH
EVENT, THE AMOUNT SO SET OFF AND OTHERWISE APPLIED SHALL BE DEEMED TO CONSTITUTE
A REVOLVING