FUNDS, THE PROCEEDS OF THE VARIABLE RATE ADVANCE TO BE
MADE BY SUCH LENDER.
THE ADMINISTRATIVE AGENT SHALL PAY THE PROCEEDS OF SUCH
VARIABLE RATE ADVANCE TO THE SWINGLINE LENDER, WHICH SHALL APPLY SUCH PROCEEDS
TO REPAY SUCH SWINGLINE LOAN.
IF THE LENDERS ARE PROHIBITED FROM MAKING LOANS
REQUIRED TO BE MADE UNDER THIS SUBSECTION FOR ANY REASON WHATSOEVER, INCLUDING
WITHOUT LIMITATION, THE OCCURRENCE OF ANY OF THE DEFAULTS OR POTENTIAL DEFAULTS
DESCRIBED IN SECTIONS SECTION 9.1 (F). 9.1(G) OR 9.1(K), EACH LENDER SHALL
PURCHASE FROM THE SWINGLINE LENDER, WITHOUT RECOURSE OR WARRANTY, AN UNDIVIDED
INTEREST AND PARTICIPATION TO THE EXTENT OF SUCH LENDER'S PRO RATA SHARE OF SUCH
SWINGLINE LOAN, BY DIRECTLY PURCHASING A PARTICIPATION IN SUCH SWINGLINE LOAN IN
SUCH AMOUNT AND PAYING THE PROCEEDS THEREOF TO THE ADMINISTRATIVE AGENT FOR THE
ACCOUNT OF THE SWINGLINE LENDER IN DOLLARS AND IN IMMEDIATELY AVAILABLE FUNDS.
A LENDER'S OBLIGATION TO PURCHASE SUCH A PARTICIPATION IN A SWINGLINE LOAN SHALL
BE ABSOLUTE AND UNCONDITIONAL AND SHALL NOT BE AFFECTED BY ANY CIRCUMSTANCE
WHATSOEVER, INCLUDING WITHOUT LIMITATION, (I) ANY CLAIM OF SETOFF, COUNTERCLAIM,
RECOUPMENT, DEFENSE OR OTHER RIGHT WHICH SUCH LENDER OR ANY OTHER PERSON MAY
HAVE OR CLAIM AGAINST THE ADMINISTRATIVE AGENT, THE SWINGLINE LENDER OR ANY
OTHER PERSON WHATSOEVER, (II) THE OCCURRENCE OR CONTINUATION OF A DEFAULT OR
POTENTIAL DEFAULT (INCLUDING WITHOUT LIMITATION, ANY OF THE DEFAULTS OR
POTENTIAL DEFAULTS DESCRIBED IN SECTION 9.1 (F). 9.1(G) OR 9.1(K), OR THE
TERMINATION OF ANY LENDER'S COMMITMENT, (III) THE EXISTENCE (OR ALLEGED
EXISTENCE) OF AN EVENT OR CONDITION WHICH HAS HAD OR COULD HAVE A MATERIAL
ADVERSE EFFECT, (IV) ANY BREACH OF ANY LOAN DOCUMENT BY THE ADMINISTRATIVE
AGENT, ANY LENDER OR THE BORROWER OR (V) ANY OTHER CIRCUMSTANCE, HAPPENING OR
EVENT WHATSOEVER, WHETHER OR NOT SIMILAR TO ANY OF THE FOREGOING.
IF SUCH
AMOUNT IS NOT IN FACT MADE AVAILABLE TO THE SWINGLINE LENDER BY ANY LENDER, THE
SWINGLINE LENDER SHALL BE ENTITLED TO RECOVER SUCH AMOUNT ON DEMAND FROM SUCH
LENDER, TOGETHER WITH
14
ACCRUED INTEREST THEREON FOR EACH DAY FROM THE DATE OF DEMAND THEREOF, AT THE
FEDERAL FUNDS RATE.
IF SUCH LENDER DOES NOT PAY SUCH AMOUNT FORTHWITH UPON THE
SWINGLINE LENDER'S DEMAND THEREFOR, AND UNTIL SUCH TIME AS SUCH LENDER MAKES THE
REQUIRED PAYMENT, THE SWINGLINE LENDER SHALL BE DEEMED TO CONTINUE TO HAVE
OUTSTANDING SWINGLINE LOANS IN THE AMOUNT OF SUCH UNPAID PARTICIPATION
OBLIGATION FOR ALL PURPOSES OF THE LOAN DOCUMENTS (OTHER THAN THOSE PROVISIONS
REQUIRING THE OTHER LENDERS TO PURCHASE A PARTICIPATION THEREIN).
FURTHER, SUCH
LENDER SHALL BE DEEMED TO HAVE ASSIGNED ANY AND ALL PAYMENTS MADE OF PRINCIPAL
AND INTEREST PAYABLE TO IT IN RESPECT OF THE LOAN, AND ANY OTHER AMOUNTS DUE IT
HEREUNDER, TO THE SWINGLINE LENDER TO FUND SWINGLINE LOANS IN THE AMOUNT OF THE
PARTICIPATION IN SWINGLINE LOANS THAT SUCH LENDER FAILED TO PURCHASE PURSUANT TO
THIS SECTION UNTIL SUCH AMOUNT HAS BEEN PURCHASED (AS A RESULT OF SUCH
ASSIGNMENT OR OTHERWISE).
2.6
LOAN FEES.
Borrower shall pay to