LIBOR RATE LOAN PURSUANT TO SECTION 2.13(B), SUCH NOTICE MUST BE RECEIVED
BY ADMINISTRATIVE AGENT NO LATER THAN 10:00 A.M. (CALIFORNIA TIME) ON THE
BUSINESS DAY PRIOR TO THE DATE THAT IS THE REQUESTED FUNDING DATE SPECIFYING THE
REQUESTED FUNDING DATE, WHICH SHALL BE A BUSINESS DAY; PROVIDED, HOWEVER, THAT
IF ADMINISTRATIVE BORROWER REQUESTS THAT SUCH BORROWING BE A LIBOR RATE LOAN,
SUCH NOTICE MUST BE RECEIVED BY ADMINISTRATIVE AGENT NO LATER THAN 11:00 A.M.
(CALIFORNIA TIME) AT LEAST 3 BUSINESS DAYS PRIOR TO THE REQUESTED FUNDING DATE.
AT ADMINISTRATIVE AGENT'S ELECTION, IN LIEU OF DELIVERING THE ABOVE-DESCRIBED
WRITTEN REQUEST, ANY AUTHORIZED PERSON MAY GIVE ADMINISTRATIVE AGENT TELEPHONIC
NOTICE OF SUCH REQUEST BY
6
THE REQUIRED TIME.
IN SUCH CIRCUMSTANCES, US BORROWERS AGREE THAT ANY SUCH
TELEPHONIC NOTICE WILL BE CONFIRMED IN WRITING WITHIN 24 HOURS OF THE GIVING OF
SUCH TELEPHONIC NOTICE, BUT THE FAILURE TO PROVIDE SUCH WRITTEN CONFIRMATION
SHALL NOT AFFECT THE VALIDITY OF THE REQUEST.
(B)
MAKING OF SWING LOANS.
(I)
IN THE CASE OF A REQUEST FOR A US
ADVANCE AND SO LONG AS (I) SUCH US ADVANCE IS TO BE DENOMINATED IN DOLLARS AND
(II) EITHER (A) THE AGGREGATE AMOUNT OF US SWING LOANS MADE SINCE THE LAST
SETTLEMENT DATE AND NOT SINCE REPAID PLUS THE AMOUNT OF THE REQUESTED US ADVANCE
DOES NOT EXCEED $5,000,000, OR (B) US SWING LENDER, IN ITS SOLE DISCRETION,
SHALL AGREE TO MAKE A US SWING LOAN NOTWITHSTANDING THE FOREGOING LIMITATION, US
SWING LENDER, AS A LENDER, SHALL MAKE A US ADVANCE IN THE AMOUNT OF SUCH US
BORROWING (ANY SUCH US ADVANCE MADE SOLELY BY US SWING LENDER AS A LENDER
PURSUANT TO THIS SECTION 2.3(B)(I) BEING REFERRED TO AS A "US SWING LOAN" AND
SUCH US ADVANCES BEING REFERRED TO COLLECTIVELY AS "US SWING LOANS") AVAILABLE
TO US BORROWERS ON THE FUNDING DATE APPLICABLE THERETO BY TRANSFERRING
IMMEDIATELY AVAILABLE FUNDS TO THE APPLICABLE US DESIGNATED ACCOUNT.
EACH US
SWING LOAN SHALL BE DEEMED TO BE A US ADVANCE HEREUNDER AND SHALL BE SUBJECT TO
ALL THE TERMS AND CONDITIONS APPLICABLE TO OTHER US ADVANCES, EXCEPT THAT ALL
PAYMENTS ON ANY US SWING LOAN SHALL BE PAYABLE TO US SWING LENDER AS A LENDER
SOLELY FOR ITS OWN ACCOUNT.
SUBJECT TO THE PROVISIONS OF SECTION 2.3(D)(IV), US
SWING LENDER AS A LENDER SHALL NOT MAKE AND SHALL NOT BE OBLIGATED TO MAKE ANY
US SWING LOAN IF US SWING LENDER HAS ACTUAL KNOWLEDGE THAT (I) ONE OR MORE OF
THE APPLICABLE CONDITIONS PRECEDENT SET FORTH IN SECTION 3.1 OR 3.2 ARE REQUIRED
TO, BUT WILL NOT, BE SATISFIED ON THE REQUESTED FUNDING DATE FOR THE APPLICABLE
US BORROWING UNLESS SUCH CONDITION HAS BEEN WAIVED IN ACCORDANCE WITH THE TERMS
OF THIS AGREEMENT, OR (II) THE REQUESTED US BORROWING WOULD EXCEED THE US
AVAILABILITY ON SUCH FUNDING DATE.
US SWING LENDER AS A LENDER SHALL NOT
OTHERWISE BE REQUIRED TO DETERMINE WHETHER THE APPLICABLE CONDITIONS PRECEDENT
SET FORTH IN SECTION 3 HAVE BEEN SATISFIED ON THE FUNDING