Nautilus 2007 Annual Report Download - page 124

4.1.3 Swingline Loans; Settlement .
(a) In determining whether to make Revolver Loans as Swingline Loans or to require funding by each Lender on the date of such
Revolver Loans, Agent may, but shall not be obligated to, advance Swingline Loans to Borrowers, up to an aggregate outstanding amount
of $15,000,000, unless the funding is specifically required to be made by all Lenders hereunder. Each Swingline Loan shall constitute a
Revolver Loan for all purposes, except that payments thereon shall be made to Agent for its own account. The obligation of Borrowers to
repay Swingline Loans shall be evidenced by the records of Agent and need not be evidenced by any promissory note.
(b) To facilitate administration of the Revolver Loans, Lenders and Agent agree (which agreement is solely among them, and not for
the benefit of or enforceable by any Borrower) that settlement among them with respect to Swingline Loans and other Revolver Loans may
take place periodically on a date determined from time to time by Agent, which shall occur at least once each week. On each settlement
date, settlement shall be made with each Lender in accordance with the Settlement Report delivered by Agent to Lenders. Between
settlement dates, Agent may in its discretion apply payments on Revolver Loans to Swingline Loans, regardless of any designation by
Borrower or any provision herein to the contrary. Each Lender’s obligation to make settlements with Agent is absolute and unconditional,
without offset, counterclaim or other defense, and whether or not the Commitments have terminated, an Overadvance exists or the
conditions in Section 6
are satisfied. If, due to an Insolvency Proceeding with respect to a Borrower or otherwise, any Swingline Loan may
not be settled among Lenders hereunder, then each Lender shall be deemed to have purchased from Agent a Pro Rata participation in each
unpaid Swingline Loan and shall transfer the amount of such participation to Agent, in immediately available funds, within one Business
Day after Agent’s request therefor.
4.2 Notices . Each Borrower authorizes Agent and Lenders to extend, convert or continue Loans, effect selections of interest rates, and
transfer funds to or on behalf of Borrowers based on telephonic or e-mailed instructions. Borrowers shall confirm each such request by prompt
delivery to Agent of a Notice of Borrowing or Notice of Conversion/Continuation, if applicable, but if it differs in any material respect from the
action taken by Agent or Lenders, the records of Agent and Lenders shall govern. Neither Agent nor any Lender shall have any liability for any
loss suffered by a Borrower as a result of Agent or any Lender acting upon its understanding of telephonic or e-
mailed instructions from a person
believed in good faith by Agent or any Lender to be a person authorized to give such instructions on a Borrower’s behalf, except to the extent
that such loss is as a result of gross negligence or willful misconduct of Agent or such Lender.
4.3 Defaulting Lender . If a Lender fails to make any payment to Agent that is required hereunder, Agent may (but shall not be required
to), in its discretion, retain payments that would otherwise be made to such defaulting Lender hereunder, apply the payments to such Lender’s
defaulted obligations or readvance the funds to Borrowers in accordance with this Agreement. The failure of any Lender to fund a Loan or to
make a payment in respect of a LC Obligation shall not relieve any other Lender of its obligations hereunder, and no Lender shall be responsible
for default by another Lender. Lenders and Agent agree (which agreement is solely among them, and not for the benefit of or enforceable by any
Borrower) that, solely for purposes of determining a defaulting Lender’s right to vote on matters relating to the Loan Documents and to share in
payments, fees and Collateral proceeds thereunder, a defaulting Lender shall not be deemed to be a “Lender” until all its defaulted obligations
have been cured.
4.4 Number and Amount of LIBOR Loans; Determination of Rate . For ease of administration, all LIBOR Revolver Loans and all
LIBOR Term Loans having the same length and beginning date of their Interest Periods shall be aggregated together, and such Borrowings shall
be
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