WOULD EXCEED THE
AGGREGATE COMMITMENT;
(III)
ISSUE ANY FACILITY LETTER OF CREDIT HAVING AN EXPIRATION DATE, OR
CONTAINING AUTOMATIC EXTENSION PROVISIONS TO EXTEND SUCH DATE, TO A DATE WHICH
IS AFTER THE BUSINESS DAY IMMEDIATELY PRECEDING THE FACILITY TERMINATION DATE;
OR
(IV)
ISSUE ANY FACILITY LETTER OF CREDIT HAVING AN EXPIRATION DATE
WHICH IS MORE THAN FIFTEEN (15) MONTHS AFTER THE DATE OF ITS ISSUANCE.
3.3
CONDITIONS.
In addition to being subject to the satisfaction of the conditions contained in
Section 5.2 hereof, the obligation of the Issuing Bank to issue any Facility
Letter of Credit is subject to the satisfaction in full of the following
conditions:
(I)
THE BORROWER SHALL HAVE DELIVERED TO THE ISSUING BANK AT SUCH
TIMES AND IN SUCH MANNER AS THE ISSUING BANK MAY REASONABLY PRESCRIBE SUCH
DOCUMENTS AND MATERIALS AS MAY BE REASONABLY REQUIRED PURSUANT TO THE TERMS OF
THE PROPOSED FACILITY LETTER OF CREDIT (IT BEING UNDERSTOOD THAT IF ANY
INCONSISTENCY EXISTS BETWEEN SUCH DOCUMENTS AND THE LOAN DOCUMENTS, THE TERMS
38
OF THE LOAN DOCUMENTS SHALL CONTROL) AND THE PROPOSED FACILITY LETTER OF CREDIT
SHALL BE REASONABLY SATISFACTORY TO THE ISSUING BANK AS TO FORM AND CONTENT;
(II)
AS OF THE DATE OF ISSUANCE, NO ORDER, JUDGMENT OR DECREE OF ANY
COURT, ARBITRATOR OR GOVERNMENTAL AUTHORITY SHALL PURPORT BY ITS TERMS TO ENJOIN
OR RESTRAIN THE ISSUING BANK FROM ISSUING THE REQUESTED FACILITY LETTER OF
CREDIT AND NO LAW, RULE OR REGULATION APPLICABLE TO THE ISSUING BANK AND NO
REQUEST OR DIRECTIVE (WHETHER OR NOT HAVING THE FORCE OF LAW) FROM ANY
GOVERNMENTAL AUTHORITY WITH JURISDICTION OVER THE ISSUING BANK SHALL PROHIBIT OR
REQUEST THAT THE ISSUING BANK REFRAIN FROM THE ISSUANCE OF LETTERS OF CREDIT
GENERALLY OR THE ISSUANCE OF THE REQUESTED FACILITY LETTER OR CREDIT IN
PARTICULAR, PROVIDED, IN SUCH EVENT, THE BORROWER SHALL HAVE THE RIGHT TO SELECT
AN ALTERNATE ISSUING BANK WHICH SHALL BE ONE OF THE LENDERS; AND
(III)
THERE SHALL NOT EXIST ANY DEFAULT OR UNMATURED DEFAULT.
3.4
PROCEDURE FOR ISSUANCE OF FACILITY LETTERS OF CREDIT.
(A)
BORROWER SHALL GIVE THE ISSUING BANK AND THE ADMINISTRATIVE AGENT
AT LEAST FIVE (5) BUSINESS DAYS' PRIOR WRITTEN NOTICE OF ANY REQUESTED ISSUANCE
OF A FACILITY LETTER OF CREDIT UNDER THIS AGREEMENT (A "LETTER OF CREDIT
REQUEST") (EXCEPT THAT, IN LIEU OF SUCH WRITTEN NOTICE, THE BORROWER MAY GIVE
THE ISSUING BANK AND THE ADMINISTRATIVE AGENT TELEPHONIC NOTICE OF SUCH REQUEST
IF CONFIRMED IN WRITING BY DELIVERY TO THE ISSUING BANK AND THE ADMINISTRATIVE
AGENT (I) BY THE CLOSE OF BUSINESS ON SUCH DAY (A) OF A TELECOPY OF THE WRITTEN
NOTICE REQUIRED HEREUNDER WHICH HAS BEEN SIGNED BY AN AUTHORIZED OFFICER, OR (B)
OF A TELEX CONTAINING ALL INFORMATION REQUIRED TO BE CONTAINED IN SUCH WRITTEN
NOTICE AND (II) PROMPTLY (BUT IN NO EVENT LATER THAN THE REQUESTED DATE OF
ISSUANCE) OF THE WRITTEN NOTICE REQUIRED HEREUNDER CONTAINING THE ORIGINAL
SIGNATURE OF AN AUTHORIZED OFFICER); SUCH NOTICE SHALL SPECIFY:
1)
THE STATED AMOUNT OF THE FACILITY LETTER