ANY LENDER PURSUANT TO
SECTION 2.15, OR IF ANY LENDER DEFAULTS IN ITS OBLIGATION TO FUND LOANS
HEREUNDER, 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), 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 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 MATERIAL
REDUCTION IN SUCH COMPENSATION OR PAYMENTS.
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 $2.5 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, REPAY 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, 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
MAKE EACH SWINGLINE LOAN AVAILABLE TO BORROWER BY MEANS OF A CREDIT TO THE
GENERAL DEPOSIT ACCOUNT OF BORROWER WITH THE SWINGLINE LENDER (OR, IN THE CASE
OF A SWINGLINE