MAKE AVAILABLE TO
THE BORROWER A CORRESPONDING AMOUNT.
IN SUCH EVENT, IF A LENDER HAS NOT IN FACT
MADE ITS SHARE OF THE APPLICABLE BORROWING AVAILABLE TO THE AGENT, THEN THE
APPLICABLE LENDER AND THE BORROWER SEVERALLY AGREE TO PAY TO THE AGENT FORTHWITH
ON DEMAND (WITHOUT DUPLICATION) SUCH CORRESPONDING AMOUNT WITH INTEREST THEREON,
FOR EACH DAY FROM AND INCLUDING THE DATE SUCH AMOUNT IS MADE AVAILABLE TO THE
BORROWER TO BUT EXCLUDING THE DATE OF PAYMENT TO THE AGENT, AT (I) IN THE CASE
OF SUCH LENDER, THE GREATER OF THE FEDERAL FUNDS EFFECTIVE RATE AND A RATE
DETERMINED BY THE AGENT IN ACCORDANCE WITH BANKING INDUSTRY RULES ON INTERBANK
COMPENSATION OR (II) IN THE CASE OF THE BORROWER, THE INTEREST RATE APPLICABLE
TO ABR LOANS.
IF SUCH LENDER PAYS SUCH AMOUNT TO THE AGENT, THEN SUCH AMOUNT
SHALL CONSTITUTE SUCH LENDER'S LOAN INCLUDED IN SUCH BORROWING.
NOTHING HEREIN
SHALL BE DEEMED TO RELIEVE ANY LENDER FROM ITS OBLIGATION TO FULFILL ITS
COMMITMENT OR TO PREJUDICE ANY RIGHTS WHICH THE AGENT OR THE BORROWER OR ANY
LOAN PARTY MAY HAVE AGAINST ANY LENDER AS A RESULT OF ANY DEFAULT BY SUCH LENDER
HEREUNDER.
SECTION 2.08. TYPE; INTEREST ELECTIONS.
(A)
EACH BORROWING INITIALLY SHALL BE
OF THE TYPE SPECIFIED IN THE APPLICABLE BORROWING REQUEST AND, IN THE CASE OF A
LIBOR RATE BORROWING, SHALL HAVE AN INITIAL INTEREST PERIOD AS SPECIFIED IN SUCH
BORROWING REQUEST.
THEREAFTER, THE BORROWER MAY ELECT TO CONVERT SUCH BORROWING
TO A DIFFERENT TYPE OR TO CONTINUE SUCH BORROWING AND, IN THE CASE OF A LIBOR
RATE BORROWING, MAY ELECT INTEREST PERIODS THEREFOR, ALL AS PROVIDED IN THIS
SECTION.
THE BORROWER MAY ELECT DIFFERENT OPTIONS WITH RESPECT TO DIFFERENT
PORTIONS OF THE AFFECTED BORROWING, IN WHICH CASE EACH SUCH PORTION SHALL BE
ALLOCATED RATABLY AMONG THE LENDERS HOLDING THE LOANS COMPRISING SUCH BORROWING,
AND THE LOANS COMPRISING EACH SUCH PORTION SHALL BE CONSIDERED A SEPARATE
BORROWING.
38
THIS SECTION SHALL NOT APPLY TO SWINGLINE BORROWINGS OR PROTECTIVE ADVANCES,
WHICH MAY NOT BE CONVERTED OR CONTINUED.
(B) TO MAKE AN ELECTION PURSUANT TO THIS SECTION, THE BORROWER SHALL NOTIFY THE
AGENT OF SUCH ELECTION BY TELEPHONE BY THE TIME THAT A BORROWING REQUEST WOULD
BE REQUIRED UNDER SECTION 2.03 IF THE BORROWER WERE REQUESTING A BORROWING OF
THE TYPE RESULTING FROM SUCH ELECTION TO BE MADE ON THE EFFECTIVE DATE OF SUCH
ELECTION.
EACH SUCH TELEPHONIC INTEREST ELECTION REQUEST SHALL BE IRREVOCABLE
AND SHALL BE CONFIRMED PROMPTLY BY HAND DELIVERY OR FACSIMILE TO THE AGENT OF A
WRITTEN INTEREST ELECTION REQUEST IN A FORM APPROVED BY THE AGENT AND SIGNED BY
THE BORROWER.
(C) EACH TELEPHONIC AND WRITTEN INTEREST ELECTION REQUEST SHALL SPECIFY THE
FOLLOWING INFORMATION IN COMPLIANCE WITH SECTION 2.02:
(I) THE BORROWING TO WHICH SUCH INTEREST ELECTION REQUEST APPLIES AND, IF
DIFFERENT OPTIONS ARE BEING ELECTED WITH RESPECT TO DIFFERENT PORTIONS THEREOF,
THE PORTIONS THEREOF TO BE ALLOCATED TO EACH RESULTING BORROWING (IN WHICH CASE
THE INFORMATION TO BE SPECIFIED PURSUANT TO CLAUSES (III)