EXTENT, BUT ONLY TO THE EXTENT, CAUSED BY THE WILLFUL
MISCONDUCT, BAD FAITH OR GROSS NEGLIGENCE OF SUCH ISSUING LENDER, THE
ADMINISTRATIVE AGENT OR ANY LENDER.
NOTHING IN THIS SECTION 3.10 IS INTENDED TO
LIMIT THE REIMBURSEMENT OBLIGATION OF THE BORROWER CONTAINED IN SECTION 3.5
HEREOF.
SECTION 3.11.
TRANSITIONAL PROVISIONS.
THE BORROWER, BANK OF AMERICA, N.A., AS
"ADMINISTRATIVE AGENT," AND THE EXISTING LENDERS ARE CURRENTLY PARTIES TO THE
EXISTING CREDIT AGREEMENT PURSUANT TO WHICH, AMONG OTHER THINGS, BANK OF
AMERICA, N.A., AS "ISSUING LENDER"
29
THEREUNDER ISSUED CERTAIN "LETTERS OF CREDIT" (AS DEFINED THEREIN) FOR THE
ACCOUNT OF THE BORROWER (TO THE EXTENT OUTSTANDING ON THE CLOSING DATE AND SET
FORTH ON SCHEDULE II, THE "EXISTING L/C'S").
EACH OF THE EXISTING L/C'S SHALL
REMAIN OUTSTANDING AND CONSTITUTE LETTERS OF CREDIT ISSUED BY AN ISSUING LENDER
FOR THE ACCOUNT OF THE BORROWER PURSUANT TO THIS AGREEMENT ON THE CLOSING DATE
FOR ALL PURPOSES UNDER THIS AGREEMENT AND ANY OTHER LOAN DOCUMENT, INCLUDING,
FOR THE PURPOSE OF THE ACCRUAL AND PAYMENT OF LETTER OF CREDIT FEES PAYABLE
PURSUANT TO SECTION 3.3 FOR THE REMAINING TERM OF SUCH EXISTING L/C'S (OTHER
THAN FOR CUSTOMARY PROCESSING FEES FOR THE ISSUANCE, AMENDMENT OR RENEWAL OF
SUCH EXISTING L/C'S OCCURRING PRIOR TO THE CLOSING DATE OR RELATING TO THE
DEEMED ISSUANCE THEREOF OCCURRING ON THE CLOSING DATE).
ALL "REIMBURSEMENT
OBLIGATIONS" AND OTHER "LETTER OF CREDIT OBLIGATIONS" (AS RESPECTIVELY DEFINED
IN THE EXISTING CREDIT AGREEMENT) WHICH REMAIN OUTSTANDING ON THE CLOSING DATE
WITH RESPECT TO THE EXISTING L/C'S SHALL CONSTITUTE REIMBURSEMENT OBLIGATIONS
AND LETTER OF CREDIT OBLIGATIONS OF THE BORROWER UNDER THIS AGREEMENT AND SHALL
BE INCLUDED IN THE CALCULATIONS OF REVOLVING LOAN AVAILABILITY, LETTER OF CREDIT
AVAILABILITY, SWING LINE AVAILABILITY AND FINANCIAL LETTER OF CREDIT
AVAILABILITY.
SCHEDULE II SETS FORTH, AS OF THE DATE HEREOF, THE AGGREGATE
OUTSTANDING FACE AMOUNT, IDENTIFYING NUMBER, EXPIRY DATE AND NAME OF THE
BENEFICIARY, WITH RESPECT TO THE EXISTING L/C'S.
SECTION 3.12.
SUPPORTING L/C DOCUMENTS.
THE BORROWER HEREBY AGREES TO EXECUTE
AND DELIVER TO EACH ISSUING LENDER SUCH LETTER OF CREDIT APPLICATIONS, MASTER
LETTER OF CREDIT AGREEMENTS AND OTHER DOCUMENTS AS SUCH ISSUING LENDER MAY
REASONABLY REQUEST IN CONNECTION WITH THE LETTERS OF CREDIT ISSUED BY SUCH
ISSUING LENDER HEREUNDER (EACH, A "SUPPORTING L/C DOCUMENT").
NOTWITHSTANDING
ANYTHING TO THE CONTRARY HEREIN, TO THE EXTENT THAT THE TERMS OF ANY SUPPORTING
L/C DOCUMENT CONFLICT WITH THE TERMS OF THIS AGREEMENT, THE TERMS OF THIS
AGREEMENT SHALL GOVERN.
ARTICLE IV.
CONDITIONS OF LENDING
SECTION 4.1.
CONDITIONS PRECEDENT TO INITIAL BORROWING AND INITIAL ISSUANCE OF
LETTERS OF CREDIT.
THE OBLIGATION OF EACH LENDER ON THE CLOSING DATE TO MAKE
THE LOANS REQUESTED TO BE MADE BY IT AND THE AGREEMENT OF THE ISSUING LENDERS TO
ISSUE THE INITIAL LETTERS OF CREDIT TO BE ISSUED OR DEEMED ISSUED ON THE CLOSING
DATE SHALL BE SUBJECT TO THE SATISFACTION OF EACH OF THE FOLLOWING CONDITIONS
PRECEDENT SET FORTH IN THIS SECTION 4.1:
(A)
DELIVERY OF DOCUMENTS.
THE ADMINISTRATIVE AGENT SHALL HAVE
RECEIVED COUNTERPARTS OF THIS