NO EVENT SHALL
EITHER LENDER NOR ANY BANK INVESTOR MAKE ANY LOAN IF, AFTER GIVING EFFECT TO
SUCH LOAN, EITHER (A) THE NET INVESTMENT WOULD EXCEED THE MAXIMUM NET INVESTMENT
OR (B) A BORROWING BASE DEFICIENCY WOULD EXIST.
IN THE EVENT THAT ANY LENDER OR
BANK INVESTOR FAILS TO MAKE A LOAN FOR ANY REASON, ANY OTHER LENDER MAY ELECT TO
ASSUME THE FULL FUNDING OBLIGATION OF SUCH LENDER OR BANK INVESTOR UNDER THIS
AGREEMENT.
IN THE CASE SUCH LENDER ELECTS TO ASSUME SUCH FUNDING OBLIGATIONS,
IT WOULD ALSO INHERIT THE RIGHT TO RECEIVE ANY AND ALL FEES AND INTEREST THAT
WOULD BE DUE TO THE NON-PERFORMING LENDER OR BANK INVESTOR (IF NOT FOR ITS
FAILURE TO MAKE THE RELATED LOAN).
(B)
VARIABLE FUNDING NOTES.
THE LOANS MADE BY EACH GROUP SHALL BE
EVIDENCED BY PROMISSORY NOTES OF THE BORROWER, SUBSTANTIALLY IN THE FORM OF
EXHIBIT A HERETO (THE "VFN" OR "VARIABLE FUNDING NOTES"), PAYABLE TO THE ORDER
OF THE RELATED MANAGING AGENT FOR SUCH GROUP FOR THE ACCOUNT OF THE RELATED
LENDER OR BANK INVESTORS, AS APPLICABLE.
EACH MANAGING AGENT SHALL RECORD THE
DATE AND AMOUNT OF EACH LOAN MADE AND THE DATE AND AMOUNT OF EACH PAYMENT OF
PRINCIPAL THEREOF, AND ANY SUCH RECORDATION SHALL CONSTITUTE PRIMA FACIE
EVIDENCE OF THE ACCURACY OF THE INFORMATION SO RECORDED.
EACH VFN SHALL (A) BE
DATED THE DATE
HEREOF, (B) BE STATED TO MATURE ON THE SCHEDULED TERMINATION DATE, AND
(C) PROVIDE FOR THE PAYMENT OF PRINCIPAL, INTEREST AND FEES IN ACCORDANCE WITH
SECTION 2.5 AND SECTION 2.6 HEREOF.
SECTION 2.2.
[RESERVED].
SECTION 2.3.
LOAN REQUESTS.
(A)
NOTICE.
PRIOR TO THE FACILITY TERMINATION DATE, THE BORROWER MAY
REQUEST LOANS ON ANY BUSINESS DAY BY DELIVERING TO THE AGENT AND EACH MANAGING
AGENT IRREVOCABLE NOTICE OF EACH BORROWING VIA FACSIMILE IN THE FORM OF EXHIBIT
B HERETO (A "BORROWING REQUEST") BY 12:00 NOON (NEW YORK CITY TIME) (I) AT LEAST
ONE (1) BUSINESS DAY PRIOR TO THE PROPOSED LOAN DATE WITH RESPECT TO ANY LOAN
WHICH IS TO BE MADE ON ANY OTHER LOAN DATE AND FOR WHICH THE RELATED BORROWING
REQUEST SPECIFIES THE CP RATE AS THE DESIRED RATE TYPE AND (II) AT LEAST THREE
(3) BUSINESS DAYS PRIOR TO THE PROPOSED LOAN DATE WITH RESPECT TO ANY LOAN WHICH
IS TO BE MADE ON ANY OTHER LOAN DATE AND FOR WHICH THE RELATED BORROWING REQUEST
SPECIFIES EITHER THE OFFSHORE RATE OR THE BASE RATE AS THE DESIRED RATE TYPE OR
FOR WHICH SUCH BORROWING REQUEST IS DELIVERED WHEN ANY TRANCHE ACCRUING DISCOUNT
AT EITHER SUCH RATE TYPE HAS A RATE PERIOD THAT HAS NOT YET THEN EXPIRED.
THE
BORROWING REQUEST SHALL SPECIFY (A) THE PROPOSED DATE FOR SUCH LOAN (THE "LOAN
DATE"), (B) THE AMOUNT OF THE LOAN REQUESTED, WHICH SHALL BE AT LEAST $1,000,000
AND INTEGRAL MULTIPLES OF $100,000 IN EXCESS THEREOF OR, TO THE EXTENT THAT THE
THEN AVAILABLE UNUSED PORTION OF THE MAXIMUM NET INVESTMENT IS LESS THAN SUCH
AMOUNT, SUCH LESSER AMOUNT EQUAL TO SUCH