LENDER'S AVERAGE DAILY LOAN BALANCE OF
THE REVOLVING LOANS, PLUS (Y) SUCH LENDER'S PRO RATA SHARE OF THE AVERAGE DAILY
AGGREGATE BALANCE OF LETTER OF CREDIT OBLIGATIONS, IN EACH CASE FOR THE
PRECEDING MONTH, MULTIPLIED BY (B) THE PERCENTAGE REQUIRED BY
SUBSECTION 2.3(A).
SUCH LENDER'S SHARE OF ALL OTHER FEES PAID TO AGENT FOR THE
BENEFIT OF LENDERS HEREUNDER SHALL BE PAID AND CALCULATED BASED ON SUCH LENDER'S
COMMITMENT WITH RESPECT TO THE LOANS ON WHICH SUCH FEES ARE ASSOCIATED.
TO THE
EXTENT AGENT DOES NOT RECEIVE THE TOTAL AMOUNT OF ANY FEE OWING BY BORROWER
UNDER THIS AGREEMENT, EACH AMOUNT PAYABLE BY AGENT TO A LENDER UNDER THIS
SUBSECTION 9.8(A)(4) WITH RESPECT TO SUCH FEE SHALL BE REDUCED ON A PRO RATA
BASIS.
ANY FUNDS DISBURSED OR RECEIVED BY AGENT PURSUANT TO THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, UNDER SUBSECTIONS 9.7, 9.8(A)(1), AND 9.9, PRIOR
TO THE SETTLEMENT DATE FOR SUCH DISBURSEMENT OR PAYMENT SHALL BE DEEMED ADVANCES
OR REMITTANCES BY GE CAPITAL, IN ITS CAPACITY AS A LENDER, FOR PURPOSES OF
CALCULATING INTEREST AND FEES PURSUANT TO THIS SUBSECTION 9.8(A)(4).
61
(B)
TERM LOAN PRINCIPAL PAYMENTS.
PROVIDED THAT
SUCH LENDER HAS MADE ALL PAYMENTS REQUIRED TO BE MADE BY IT UNDER THIS
AGREEMENT, PAYMENTS OF PRINCIPAL OF THE TERM LOANS WILL BE SETTLED ON THE DATE
OF RECEIPT IF RECEIVED BY AGENT ON THE LAST BUSINESS DAY OF A MONTH AND ON THE
BUSINESS DAY IMMEDIATELY FOLLOWING THE DATE OF RECEIPT IF RECEIVED ON ANY DAY
OTHER THAN THE LAST BUSINESS DAY OF A MONTH.
(C)
RETURN OF PAYMENTS.
(1)
RECOVERY AFTER NON-RECEIPT OF EXPECTED
PAYMENT.
IF AGENT PAYS AN AMOUNT TO A LENDER UNDER THIS AGREEMENT IN THE BELIEF
OR EXPECTATION THAT A RELATED PAYMENT HAS BEEN OR WILL BE RECEIVED BY AGENT FROM
BORROWER AND SUCH RELATED PAYMENT IS NOT RECEIVED BY AGENT, THEN AGENT WILL BE
ENTITLED TO RECOVER SUCH AMOUNT FROM SUCH LENDER WITHOUT SET-OFF, COUNTERCLAIM
OR DEDUCTION OF ANY KIND TOGETHER WITH INTEREST THEREON, FOR EACH DAY FROM AND
INCLUDING THE DATE SUCH AMOUNT IS MADE AVAILABLE BY AGENT TO SUCH LENDER TO BUT
EXCLUDING THE DATE OF REPAYMENT TO AGENT, AT THE GREATER OF THE FEDERAL FUNDS
EFFECTIVE RATE AND A RATE DETERMINED BY AGENT IN ACCORDANCE WITH BANKING
INDUSTRY RULES ON INTERBANK COMPENSATION.
(2)
RECOVERY OF RETURNED PAYMENT.
IF AGENT
DETERMINES AT ANY TIME THAT ANY AMOUNT RECEIVED BY AGENT UNDER THIS AGREEMENT
MUST BE RETURNED TO ANY OBLIGOR OR PAID TO ANY OTHER PERSON PURSUANT TO ANY
REQUIREMENT OF LAW, COURT ORDER OR OTHERWISE, THEN, NOTWITHSTANDING ANY OTHER
TERM OR CONDITION OF THIS AGREEMENT, AGENT WILL NOT BE REQUIRED TO DISTRIBUTE
ANY PORTION THEREOF TO ANY LENDER.
IN ADDITION, EACH LENDER WILL REPAY TO AGENT
ON DEMAND ANY PORTION OF SUCH AMOUNT THAT AGENT HAS DISTRIBUTED TO SUCH LENDER,
TOGETHER WITH INTEREST AT SUCH RATE, IF ANY, AS AGENT IS REQUIRED TO PAY TO ANY
OBLIGOR OR SUCH OTHER PERSON, WITHOUT SET-OFF, COUNTERCLAIM OR DEDUCTION OF ANY
KIND.
9.9
DISCRETIONARY