OF COMPETENT JURISDICTION FINALLY DETERMINES TO HAVE
EITHER (I) RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH
INDEMNIFIED PERSON, OR (II) ARISEN IN CONNECTION WITH A SUIT, ACTION OR OTHER
LEGAL PROCEEDING IN WHICH (A) THE BORROWER ALLEGES A BREACH BY SUCH INDEMNIFIED
PERSON OF ITS EXPRESS OBLIGATIONS UNDER THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS, AND (B) SUCH COURT HAS ENTERED A FINAL, NON-APPEALABLE JUDGMENT OR
ORDER IN FAVOR OF BORROWER CONTAINING A SPECIFIC FINDING THAT BORROWER IS THE
PREVAILING PARTY WITH RESPECT TO SUCH ALLEGED BREACH.
THIS PROVISION SHALL
SURVIVE THE
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TERMINATION OF THIS AGREEMENT AND THE REPAYMENT OF THE OBLIGATIONS.
IF ANY
INDEMNIFIED PERSON MAKES ANY PAYMENT TO ANY OTHER INDEMNIFIED PERSON WITH
RESPECT TO AN INDEMNIFIED LIABILITY AS TO WHICH BORROWER WAS REQUIRED TO
INDEMNIFY THE INDEMNIFIED PERSON RECEIVING SUCH PAYMENT, THE INDEMNIFIED PERSON
MAKING SUCH PAYMENT IS ENTITLED TO BE INDEMNIFIED AND REIMBURSED BY BORROWER
WITH RESPECT THERETO.
WITHOUT LIMITATION, THE FOREGOING INDEMNITY SHALL APPLY
TO EACH INDEMNIFIED PERSON WITH RESPECT TO INDEMNIFIED LIABILITIES WHICH ARE IN
WHOLE OR IN PART CAUSED BY OR ARISE OUT OF ANY NEGLIGENT ACT OR OMISSION OF SUCH
INDEMNIFIED PERSON OR OF ANY OTHER PERSON.
2.20
LIBOR OPTION.
(A)
INTEREST AND INTEREST PAYMENT DATES.
IN LIEU OF HAVING INTEREST
CHARGED AT THE RATE BASED UPON THE BASE RATE, BORROWER SHALL HAVE THE OPTION
(THE "LIBOR OPTION") TO HAVE INTEREST ON ALL OR A PORTION OF THE REVOLVING LOANS
BE CHARGED AT A RATE OF INTEREST BASED UPON THE LIBOR RATE.
INTEREST ON LIBOR
RATE LOANS SHALL BE PAYABLE ON THE EARLIEST OF (I) THE FIRST CALENDAR DAY AFTER
THE LAST DAY OF THE INTEREST PERIOD APPLICABLE THERETO, (II) THE OCCURRENCE OF
AN EVENT OF DEFAULT IN CONSEQUENCE OF WHICH LENDER HAS ELECTED TO ACCELERATE THE
MATURITY OF ALL OR ANY PORTION OF THE OBLIGATIONS, OR (III) TERMINATION OF THIS
AGREEMENT PURSUANT TO THE TERMS HEREOF.
ON THE FIRST CALENDAR DAY AFTER THE END
OF EACH APPLICABLE INTEREST PERIOD, UNLESS BORROWER PROPERLY HAS EXERCISED THE
LIBOR OPTION WITH RESPECT THERETO, THE INTEREST RATE APPLICABLE TO SUCH LIBOR
RATE LOAN AUTOMATICALLY SHALL CONVERT TO THE RATE OF INTEREST THEN APPLICABLE TO
BASE RATE LOANS.
AT ANY TIME THAT AN EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING, BORROWER NO LONGER SHALL HAVE THE OPTION TO REQUEST THAT REVOLVING
LOANS BEAR INTEREST AT A RATE BASED UPON THE LIBOR RATE AND LENDER SHALL HAVE
THE RIGHT TO CONVERT THE INTEREST RATE ON ALL OUTSTANDING LIBOR RATE LOANS TO
THE RATE THEN APPLICABLE TO BASE RATE LOANS HEREUNDER.
(B)
LIBOR ELECTION.
(I)
BORROWER MAY, AT ANY TIME AND FROM TIME TO TIME, SO LONG AS NO
EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING, ELECT TO EXERCISE THE LIBOR
OPTION BY NOTIFYING LENDER PRIOR TO 11:00 A.M. (CALIFORNIA TIME) AT LEAST 3
BUSINESS DAYS PRIOR TO THE COMMENCEMENT OF THE PROPOSED INTEREST PERIOD (THE
"LIBOR DEADLINE").
NOTICE OF BORROWER'S ELECTION OF THE LIBOR OPTION FOR A
PERMITTED PORTION OF