AFTER
ALL EVENTS OF DEFAULT HAVE BEEN CURED OR WAIVED.
(K)
EVERGREEN LETTERS OF CREDIT.
THE LENDERS AGREE THAT, WHILE AN EVERGREEN
LC IS OUTSTANDING AND PRIOR TO THE MATURITY DATE, AT THE OPTION OF THE BORROWER
AND UPON THE WRITTEN REQUEST OF THE BORROWER RECEIVED BY THE ISSUING BANK (WITH
A COPY TO THE ADMINISTRATIVE AGENT) NO MORE THAN FIFTY (50) DAYS AND AT LEAST
TWENTY (20) DAYS (OR SUCH SHORTER TIME AS THE ISSUING BANK MAY AGREE IN A
PARTICULAR INSTANCE) PRIOR TO THE EFFECTIVE NON-EXTENSION DATE THEREOF, THE
ISSUING BANK SHALL BE ENTITLED TO AUTHORIZE OR PERMIT THE AUTOMATIC EXTENSION OF
SUCH EVERGREEN LC.
EACH SUCH REQUEST FROM THE BORROWER FOR EXTENSION OF AN
EVERGREEN LC SHALL BE IN WRITING
27
AND SHALL SPECIFY: (I) THE EVERGREEN LC TO BE EXTENDED; (II) THE PROPOSED
EFFECTIVE DATE OF EXTENSION OF THE EVERGREEN LC (WHICH SHALL BE A BUSINESS DAY
EXCEPT TO THE EXTENT IT IS THE EXPIRY DATE OF THE APPLICABLE EVERGREEN LC AND NO
ACTION OF THE ISSUING BANK IS REQUIRED ON SUCH DATE); (III) THE REVISED EXPIRY
DATE OF THE EVERGREEN LC (WHICH, SUBJECT TO SECTION 2.05(C), SHALL NOT BE LATER
THAN THE EARLIER OF (A) THE DATE ONE YEAR AFTER THE THEN EFFECTIVE EXPIRY DATE
OF SUCH EVERGREEN LC AND (B) THE DATE THAT IS FIVE BUSINESS DAYS PRIOR TO THE
MATURITY DATE); AND (IV) SUCH OTHER MATTERS AS THE ISSUING BANK MAY REASONABLY
REQUIRE.
THE ISSUING BANK SHALL BE UNDER NO OBLIGATION TO SO EXTEND OR PERMIT
THE EXTENSION OF ANY EVERGREEN LC IF THE ISSUING BANK WOULD HAVE NO OBLIGATION
AS OF THE PROPOSED EFFECTIVE DATE OF EXTENSION TO ISSUE OR AMEND SUCH EVERGREEN
LC IN ITS EXTENDED FORM UNDER THE TERMS OF THIS AGREEMENT (INCLUDING
SECTION 4.02).
IF AS OF THE DATE TWENTY (20) DAYS PRIOR TO THE NON-EXTENSION
DATE OF ANY EVERGREEN LC THE ISSUING BANK WOULD BE ENTITLED TO AUTHORIZE THE
EXTENSION OF SUCH EVERGREEN LC IN ACCORDANCE WITH THIS SECTION 2.05(K) UPON THE
REQUEST OF THE BORROWER BUT THE ISSUING BANK SHALL NOT HAVE RECEIVED A REQUEST
FROM THE BORROWER TO CAUSE OR PERMIT SUCH EXTENSION OR A WRITTEN DIRECTION FROM
THE BORROWER TO NOT CAUSE OR PERMIT SUCH EXTENSION, BORROWER SHALL BE DEEMED TO
HAVE DELIVERED A REQUEST TO CAUSE THE EXTENSION OF SUCH LETTER OF CREDIT.
IN
ADDITION, UPON THE DIRECTION OF THE BORROWER FOR ANY EVERGREEN LC, THE ISSUING
BANK SHALL GIVE SUCH NOTICE AS IS NECESSARY TO PREVENT AN AUTOMATIC EXTENSION OF
THE EXPIRY DATE OF SUCH EVERGREEN LC; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL
THE ISSUING BANK HAVE LIABILITY TO ANY PARTY THERETO FOR ITS FAILURE TO GIVE
SUCH NOTICE IF WRITTEN DIRECTION TO GIVE SUCH NOTICE IS RECEIVED BY THE ISSUING
BANK LESS THAN TWENTY (20) DAYS PRIOR TO THE NON-EXTENSION DATE FOR SUCH
EVERGREEN LC.
THE ISSUING BANK WILL PROVIDE TO THE ADMINISTRATIVE AGENT AND THE
BORROWER A COPY OF ANY NOTICE OF NON-EXTENSION GIVEN TO AN EVERGREEN LC
BENEFICIARY