SUCH DEFAULTING LENDER'S DEFAULT IN WRITING, OR (Z) THE DEFAULTING LENDER
MAKES ITS PRO RATA SHARE OF THE APPLICABLE ADVANCE AND PAYS TO ADMINISTRATIVE
AGENT, CANADIAN ADMINISTRATIVE AGENT OR EUROPEAN ADMINISTRATIVE AGENT, AS
APPLICABLE, ALL AMOUNTS OWING BY DEFAULTING LENDER IN RESPECT THEREOF.
THE
OPERATION OF THIS SECTION SHALL NOT BE CONSTRUED TO INCREASE OR OTHERWISE AFFECT
THE COMMITMENT OF ANY LENDER, TO RELIEVE OR EXCUSE THE PERFORMANCE BY SUCH
DEFAULTING LENDER OR ANY OTHER LENDER OF ITS DUTIES AND OBLIGATIONS HEREUNDER,
OR TO RELIEVE OR EXCUSE THE PERFORMANCE BY BORROWERS OF THEIR DUTIES AND
OBLIGATIONS HEREUNDER TO AGENTS 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 ADMINISTRATIVE
AGENT, TO ARRANGE FOR A SUBSTITUTE LENDER TO ASSUME THE ADVANCES AND COMMITMENT
OF SUCH DEFAULTING LENDER, SUCH SUBSTITUTE LENDER TO BE ACCEPTABLE TO
ADMINISTRATIVE 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
12
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 GROUPS' OR
BORROWERS' 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)
ADMINISTRATIVE AGENT HEREBY IS
AUTHORIZED BY BORROWERS AND THE LENDERS, FROM TIME TO TIME IN ADMINISTRATIVE
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 US ADVANCES TO US BORROWERS ON BEHALF OF THE US LENDERS THAT ADMINISTRATIVE
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 US BORROWERS PURSUANT TO THE TERMS OF
THIS AGREEMENT, INCLUDING LENDER GROUP EXPENSES AND THE COSTS, FEES, AND
EXPENSES DESCRIBED IN SECTION 10 (ANY OF THE ADVANCES DESCRIBED IN THIS
SECTION 2.3(D)(I) SHALL BE REFERRED TO AS "US PROTECTIVE ADVANCES"); PROVIDED,
THAT THE AGGREGATE DOLLAR EQUIVALENT OF THE PRINCIPAL AMOUNT OF US PROTECTIVE
ADVANCES MADE PURSUANT TO THIS