SHALL NOT REQUEST ANY LENDER TO MAKE, AND NO LENDER
SHALL HAVE THE OBLIGATION TO MAKE, ANY ADVANCE IF AGENT SHALL HAVE ACTUAL
KNOWLEDGE THAT (A) ONE OR MORE OF THE APPLICABLE CONDITIONS PRECEDENT SET FORTH
IN SECTION 4 WILL NOT BE SATISFIED ON THE REQUESTED FUNDING DATE FOR THE
APPLICABLE BORROWING UNLESS SUCH CONDITION HAS BEEN WAIVED, OR (B) THE REQUESTED
BORROWING WOULD EXCEED THE AVAILABILITY ON SUCH FUNDING DATE.
(II)
UNLESS AGENT RECEIVES NOTICE FROM A LENDER
PRIOR TO 9:00 A.M. (NEW YORK TIME) ON THE DATE OF A 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 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 COMPRISING SUCH BORROWING.
THE FAILURE
OF ANY LENDER TO MAKE ANY ADVANCE ON ANY FUNDING DATE SHALL NOT RELIEVE ANY
OTHER LENDER OF ANY OBLIGATION HEREUNDER TO MAKE
4
AN ADVANCE ON SUCH FUNDING DATE, BUT NO LENDER SHALL BE RESPONSIBLE FOR THE
FAILURE OF ANY OTHER LENDER TO MAKE THE ADVANCE TO BE MADE BY SUCH OTHER LENDER
ON ANY FUNDING DATE.
(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 THE OTHER
MEMBERS OF THE LENDER GROUP) OR, IF SO DIRECTED