AND
DELIVER THIS CREDIT AGREEMENT AND TO FULFILL ITS OBLIGATIONS HEREUNDER
(INCLUDING, WITHOUT LIMITATION, THOSE IN THIS SECTION 2.12); (II) NO NOTICES TO,
OR CONSENTS, AUTHORIZATIONS OR APPROVALS OF, ANY PERSON ARE REQUIRED (OTHER THAN
ANY ALREADY GIVEN OR OBTAINED) FOR ITS DUE EXECUTION, DELIVERY AND PERFORMANCE
OF THIS CREDIT AGREEMENT; AND NO FURTHER ACTION BY, OR NOTICE TO, OR FILING
WITH, ANY PERSON IS REQUIRED OF IT FOR SUCH EXECUTION, DELIVERY OR PERFORMANCE;
(III) THIS CREDIT AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY IT AND
CONSTITUTES ITS LEGAL, VALID AND BINDING OBLIGATION ENFORCEABLE AGAINST IT IN
ACCORDANCE WITH THE TERMS HEREOF, SUBJECT, AS TO ENFORCEMENT, TO BANKRUPTCY,
INSOLVENCY, MORATORIUM, REORGANIZATION AND OTHER LAWS OF GENERAL APPLICATION
RELATING TO OR AFFECTING CREDITORS' RIGHTS AND TO GENERAL EQUITABLE PRINCIPLES;
AND (IV) IT IS AN ELIGIBLE TRANSFEREE.
71
(J)
EACH OF THE PARTIES HERETO HEREBY CONSENTS TO THE ASSIGNMENTS AND
ASSUMPTIONS CONTEMPLATED BY THIS SECTION 2.12, NOTWITHSTANDING ANY FAILURE TO
COMPLY WITH (AND EACH OF THE PARTIES HERETO HEREBY WAIVES) THE REQUIREMENTS OF
SECTION 11.6(B) OF THIS CREDIT AGREEMENT IN ORDER TO MAKE SUCH ASSIGNMENTS AND
ASSUMPTIONS EFFECTIVE.
ARTICLE 3
LETTERS OF CREDIT
3.1
Issuance of Letters of Credit.
Subject to the terms and
conditions of this Credit Agreement and in reliance upon the representations and
warranties of the Borrower set forth herein, upon the request of the Borrower
pursuant to Section 3.4, the Issuing Lender shall issue Letters of Credit
hereunder and for the Borrower's account, as more specifically described
below.
It is acknowledged and agreed by each party to this Credit Agreement
that each of the letters of credit which were issued under the Existing Credit
Agreement prior to the Initial Borrowing Date and which remain outstanding on
the Initial Borrowing Date and are set forth on Schedule V (each such letter of
credit, an "Existing Letter of Credit" and, collectively, the "Existing Letters
of Credit") shall, from and after the Initial Borrowing Date, constitute a
Letter of Credit for all purposes of this Agreement and shall, for purposes of
Sections 3.3 and 4.7, be deemed issued on the Initial Borrowing Date.
The
Issuing Lender shall be entitled to all of the benefits as the Issuing Lender
and to all of the obligations of the Borrower and the Lender with respect to the
Existing Letters of Credit under this Credit Agreement.
The stated amount of
each Existing Letter of Credit and the expiry date therefor is set forth on
Schedule V.
The Issuing Lender shall not be obligated to issue any Letter of
Credit for the account of the Borrower if at the time of such requested
issuance:
(A)
THE FACE AMOUNT OF SUCH REQUESTED LETTER OF CREDIT (TAKING THE
DOLLAR EQUIVALENT THEREOF IN THE CASE OF ANY LETTER OF CREDIT DENOMINATED IN AN
ALTERNATE CURRENCY) WHEN ADDED TO THE LETTER OF CREDIT OBLIGATIONS THEN
OUTSTANDING, WOULD (I) CAUSE THE LETTER OF CREDIT OBLIGATIONS TO EXCEED
$80,000,000, OR (II) WHEN ADDED TO THE AGGREGATE AMOUNT OF REVOLVING LOANS