HAVE RECEIVED (IN SUFFICIENT
TIME TO ACT) WRITTEN NOTICE FROM A LENDER THAT IT DOES NOT INTEND TO FUND ITS
PRO RATA SHARE OF A BORROWING, AGENT MAY, BUT SHALL NOT BE OBLIGATED TO, ASSUME
THAT SUCH LENDER HAS DEPOSITED OR PROMPTLY WILL DEPOSIT ITS SHARE WITH AGENT,
AND AGENT MAY, BUT SHALL NOT BE OBLIGATED TO, DISBURSE A CORRESPONDING AMOUNT TO
BORROWERS.
IF A LENDER'S SHARE OF ANY BORROWING OR OF ANY SETTLEMENT PURSUANT
TO SECTION 4.1.3(B) IS NOT RECEIVED BY AGENT, THEN BORROWERS AGREE TO REPAY TO
AGENT ON DEMAND THE AMOUNT OF SUCH SHARE, TOGETHER WITH INTEREST THEREON FROM
THE DATE DISBURSED UNTIL REPAID, AT THE RATE APPLICABLE TO THE BORROWING.
4.1.3
SWINGLINE LOANS; SETTLEMENT.
A.
AGENT MAY, BUT SHALL NOT BE OBLIGATED TO, ADVANCE SWINGLINE LOANS
TO BORROWERS, UP TO AN AGGREGATE OUTSTANDING PRINCIPAL AMOUNT EQUAL TO THE
GREATER OF (I) $15,000,000 AND (II) 10% OF THE AGGREGATE AMOUNT OF THE
COMMITMENTS.
EACH SWINGLINE LOAN SHALL CONSTITUTE A LOAN FOR ALL PURPOSES,
EXCEPT THAT PAYMENTS THEREON SHALL BE MADE TO AGENT FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF LENDERS, AS APPLICABLE.
THE OBLIGATION OF BORROWERS TO REPAY
SWINGLINE LOANS SHALL BE EVIDENCED BY THE RECORDS OF AGENT AND NEED NOT BE
EVIDENCED BY ANY PROMISSORY NOTE.
B.
TO FACILITATE ADMINISTRATION OF THE LOANS, LENDERS AND AGENT
AGREE (WHICH AGREEMENT IS SOLELY AMONG THEM, AND NOT FOR THE BENEFIT OF OR
ENFORCEABLE BY ANY BORROWER) THAT SETTLEMENT AMONG THEM WITH RESPECT TO
SWINGLINE LOANS AND OTHER LOANS MAY TAKE PLACE ON A DATE DETERMINED FROM TIME TO
TIME BY AGENT, WHICH SHALL OCCUR AT LEAST ONCE EACH WEEK.
ON EACH SETTLEMENT
DATE, SETTLEMENT SHALL BE MADE WITH EACH LENDER IN ACCORDANCE WITH THE
SETTLEMENT REPORT DELIVERED BY AGENT TO LENDERS.
BETWEEN SETTLEMENT DATES,
AGENT MAY IN ITS DISCRETION APPLY PAYMENTS ON LOANS TO SWINGLINE LOANS,
REGARDLESS OF ANY DESIGNATION BY BORROWER OR ANY PROVISION HEREIN TO THE
CONTRARY.
EACH LENDER'S OBLIGATION TO MAKE SETTLEMENTS WITH AGENT IS
49
ABSOLUTE AND UNCONDITIONAL, WITHOUT OFFSET, COUNTERCLAIM OR OTHER DEFENSE, AND
WHETHER OR NOT THE COMMITMENTS HAVE TERMINATED, AN OVERADVANCE EXISTS OR THE
CONDITIONS IN SECTION 6 ARE SATISFIED.
IF, DUE TO AN INSOLVENCY PROCEEDING WITH
RESPECT TO A BORROWER OR OTHERWISE, ANY SWINGLINE LOAN MAY NOT BE SETTLED AMONG
LENDERS HEREUNDER, THEN EACH LENDER SHALL BE DEEMED TO HAVE PURCHASED FROM AGENT
A PRO RATA PARTICIPATION IN EACH UNPAID SWINGLINE LOAN AND SHALL TRANSFER THE
AMOUNT OF SUCH PARTICIPATION TO AGENT, IN IMMEDIATELY AVAILABLE FUNDS, WITHIN
ONE BUSINESS DAY AFTER AGENT'S REQUEST THEREFOR.
AGENT ACKNOWLEDGES THAT IT
RECEIVES ALL LOAN PROCEEDS, AND INTEREST AND FEES OWING TO LENDERS HEREUNDER, IN
ITS CAPACITY AS AGENT UNDER THIS AGREEMENT.
4.1.4
NOTICES.
EACH BORROWER AUTHORIZES AGENT AND LENDERS TO EXTEND,
CONVERT OR CONTINUE LOANS, EFFECT SELECTIONS OF INTEREST RATES, AND TRANSFER
FUNDS TO OR ON BEHALF OF BORROWERS BASED ON TELEPHONIC OR E-MAILED
INSTRUCTIONS.
BORROWERS SHALL CONFIRM EACH SUCH REQUEST BY PROMPT DELIVERY TO
AGENT OF A NOTICE OF