THE ACCOUNT OF ANY LENDER PURSUANT TO
SECTION 2.15, (3) ANY LENDER DEFAULTS IN ITS OBLIGATION TO FUND LOANS HEREUNDER
OR (4) BORROWER ELECTS TO REPLACE A LENDER IN ACCORDANCE WITH SECTION 11.02(C),
THEN BORROWER MAY, AT ITS SOLE EXPENSE AND EFFORT, UPON NOTICE TO SUCH LENDER
AND THE ADMINISTRATIVE AGENT, REQUIRE SUCH LENDER TO ASSIGN AND DELEGATE,
WITHOUT RECOURSE (IN ACCORDANCE WITH AND SUBJECT TO THE RESTRICTIONS CONTAINED
IN SECTION 11.04), ALL OF ITS INTERESTS, RIGHTS AND OBLIGATIONS UNDER THIS
AGREEMENT TO AN ASSIGNEE SELECTED BY BORROWER THAT SHALL ASSUME SUCH OBLIGATIONS
(WHICH ASSIGNEE MAY BE ANOTHER LENDER, IF A LENDER ACCEPTS SUCH ASSIGNMENT);
PROVIDED THAT (I) BORROWER SHALL HAVE RECEIVED THE PRIOR WRITTEN CONSENT OF THE
ADMINISTRATIVE AGENT (AND, IF A REVOLVING COMMITMENT IS BEING ASSIGNED, THE
ISSUING BANK AND SWINGLINE LENDER) IF THE ASSIGNEE IS NOT ANOTHER LENDER, WHICH
CONSENT SHALL NOT UNREASONABLY BE WITHHELD, (II) SUCH LENDER SHALL HAVE RECEIVED
PAYMENT OF AN AMOUNT EQUAL TO THE OUTSTANDING PRINCIPAL OF ITS LOANS AND
PARTICIPATIONS IN LC DISBURSEMENTS AND SWINGLINE LOANS, ACCRUED INTEREST
THEREON, ACCRUED FEES, PREPAYMENT PREMIUMS AND ALL OTHER AMOUNTS PAYABLE TO IT
HEREUNDER, FROM THE ASSIGNEE (TO THE EXTENT OF SUCH OUTSTANDING PRINCIPAL AND
ACCRUED INTEREST AND FEES) OR BORROWER (IN THE CASE OF ALL OTHER AMOUNTS) AND
(III) IN THE CASE OF ANY SUCH ASSIGNMENT RESULTING FROM A CLAIM FOR COMPENSATION
UNDER SECTION 2.12 OR PAYMENTS REQUIRED TO BE MADE PURSUANT TO SECTION 2.15,
SUCH ASSIGNMENT WILL RESULT IN A REDUCTION IN SUCH COMPENSATION OR PAYMENTS
(OTHER THAN A DE MINIMIS AMOUNT).
A LENDER SHALL NOT BE REQUIRED TO MAKE ANY
SUCH ASSIGNMENT AND DELEGATION IF, PRIOR THERETO, AS A RESULT OF A WAIVER BY
SUCH LENDER OR OTHERWISE, THE CIRCUMSTANCES ENTITLING BORROWER TO REQUIRE SUCH
ASSIGNMENT AND DELEGATION CEASE TO APPLY.
SECTION 2.17.
SWINGLINE LOANS
(A)
SWINGLINE COMMITMENT.
SUBJECT TO THE TERMS AND CONDITIONS SET
FORTH HEREIN, THE SWINGLINE LENDER AGREES TO MAKE SWINGLINE LOANS TO BORROWER
FROM TIME TO TIME DURING THE REVOLVING AVAILABILITY PERIOD, IN AN AGGREGATE
PRINCIPAL AMOUNT AT ANY TIME OUTSTANDING THAT WILL NOT RESULT IN (I) THE
AGGREGATE PRINCIPAL AMOUNT OF OUTSTANDING SWINGLINE LOANS EXCEEDING $5.0 MILLION
OR (II) THE SUM OF THE TOTAL REVOLVING EXPOSURES EXCEEDING THE TOTAL REVOLVING
COMMITMENTS; PROVIDED THAT THE SWINGLINE LENDER SHALL NOT BE REQUIRED TO MAKE A
SWINGLINE LOAN TO REFINANCE AN OUTSTANDING SWINGLINE LOAN.
WITHIN THE FOREGOING
LIMITS AND SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN, BORROWER MAY
BORROW, PREPAY AND REBORROW SWINGLINE LOANS.
(B)
SWINGLINE LOANS.
TO REQUEST A SWINGLINE LOAN, BORROWER SHALL
NOTIFY THE ADMINISTRATIVE AGENT OF SUCH REQUEST BY TELEPHONE (CONFIRMED BY
TELECOPY), NOT LATER THAN 2:00 P.M., NEW YORK CITY TIME, ON THE DAY OF A
PROPOSED SWINGLINE LOAN.
EACH SUCH NOTICE SHALL BE IRREVOCABLE AND SHALL
SPECIFY THE REQUESTED DATE (WHICH SHALL BE A BUSINESS DAY) AND AMOUNT OF THE
REQUESTED SWINGLINE LOAN.
THE ADMINISTRATIVE AGENT WILL PROMPTLY ADVISE THE
SWINGLINE LENDER OF ANY SUCH NOTICE RECEIVED FROM BORROWER.
THE SWINGLINE
LENDER SHALL