COMMITMENTS; PROVIDED THAT THE
SWINGLINE LENDER SHALL NOT BE REQUIRED TO MAKE A SWINGLINE LOAN TO REFINANCE AN
OUTSTANDING SWINGLINE LOAN.
NOTWITHSTANDING THE FOREGOING, THE SWINGLINE LENDER
SHALL NOT BE REQUIRED TO MAKE A SWINGLINE LOAN IF (I) ANY REVOLVING LENDER SHALL
BE IN DEFAULT OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR (II) ANY REVOLVING
LENDER SHALL HAVE NOTIFIED THE SWINGLINE LENDER AND THE BORROWER IN WRITING AT
LEAST ONE BUSINESS DAY PRIOR TO THE DATE OF BORROWING WITH RESPECT TO SUCH
SWINGLINE LOAN THAT THE CONDITIONS SET FORTH IN SECTION 5.3 HAVE NOT BEEN
SATISFIED AND SUCH CONDITIONS REMAIN UNSATISFIED AS OF THE REQUESTED TIME OF THE
MAKING OF SUCH SWINGLINE LOAN. WITHIN THE FOREGOING LIMITS AND SUBJECT TO THE
TERMS AND CONDITIONS SET FORTH HEREIN, THE BORROWER MAY BORROW, PREPAY AND
REBORROW SWINGLINE LOANS.
(B)
TO REQUEST A SWINGLINE LOAN, THE BORROWER
SHALL NOTIFY THE ADMINISTRATIVE AGENT OF SUCH REQUEST BY TELEPHONE (CONFIRMED BY
TELECOPY), NOT LATER THAN 3:00 P.M., NEW YORK CITY TIME, ON THE DAY OF A
PROPOSED SWINGLINE LOAN.
EACH SUCH NOTICE SHALL BE IRREVOCABLE AND SHALL
SPECIFY (I) THE AGGREGATE PRINCIPAL AMOUNT TO BE BORROWED, (II) THE REQUESTED
DATE OF SUCH BORROWING, AND (III) THE AMOUNT
46
OF, AND THE LENGTH OF THE SWINGLINE INTEREST PERIOD FOR, EACH SWINGLINE LOAN,
PROVIDED, HOWEVER, THAT NO SUCH SWINGLINE INTEREST PERIOD SHALL END AFTER THE
BUSINESS DAY IMMEDIATELY PRECEDING THE REVOLVING MATURITY DATE.
THE
ADMINISTRATIVE AGENT WILL PROMPTLY ADVISE THE SWINGLINE LENDER OF ANY SUCH
NOTICE RECEIVED FROM THE BORROWER.
THE SWINGLINE LENDER SHALL (WITH RESPECT TO
SWINGLINE LOANS THAT BEAR INTEREST AT THE NEGOTIATED RATE, SUBJECT TO ITS
AGREEMENT WITH THE BORROWER ON THE NEGOTIATED RATE TO BE APPLIED THERETO) MAKE
EACH SWINGLINE LOAN AVAILABLE TO THE BORROWER BY MEANS OF A CREDIT TO THE
GENERAL DEPOSIT ACCOUNT OF THE BORROWER WITH THE SWINGLINE LENDER (OR, IN THE
CASE OF A SWINGLINE LOAN MADE TO FINANCE THE REIMBURSEMENT OF AN LC DISBURSEMENT
AS PROVIDED IN SECTION 2.9(E), BY REMITTANCE TO THE ISSUING BANK) BY 3:30 P.M.,
NEW YORK CITY TIME, ON THE REQUESTED DATE OF SUCH SWINGLINE LOAN.
(C)
THE SWINGLINE LENDER MAY BY WRITTEN NOTICE
GIVEN TO THE ADMINISTRATIVE AGENT NOT LATER THAN 10:00 A.M., NEW YORK CITY TIME,
ON ANY BUSINESS DAY NOTIFY THE ADMINISTRATIVE AGENT THAT THE SWINGLINE LENDER IS
REQUESTING THAT EACH LENDER, AND THE ADMINISTRATIVE AGENT MAY (WITH THE CONSENT
OF REQUIRED LENDERS) OR SHALL (AT THE REQUEST OF REQUIRED LENDERS) BY WRITTEN
NOTICE GIVEN TO THE SWINGLINE LENDER NOT LATER THAN 10:00 A.M., NEW YORK CITY
TIME, ON ANY BUSINESS DAY REQUIRE THAT EACH LENDER, AT THE OPTION OF THE
BORROWER, (I) MAKE A REVOLVING LOAN IN AN AMOUNT EQUAL TO ITS PRO RATA REVOLVING
COMMITMENT WITH RESPECT TO THE OUTSTANDING PRINCIPAL BALANCE OF, AND ACCRUED AND
UNPAID INTEREST ON, THE SWINGLINE LOANS, OR (II) ACQUIRE PARTICIPATIONS ON SUCH
BUSINESS DAY IN ALL OR A PORTION OF THE SWINGLINE LOANS OUTSTANDING.
SUCH
NOTICE SHALL SPECIFY THE AGGREGATE AMOUNT OF