BORROWER OF ANY OF ITS OBLIGATIONS HEREUNDER TO ANY SUCH PERSON.
(D)
WITHOUT PREJUDICE TO THE SURVIVAL OF ANY OTHER
AGREEMENT OF THE BORROWER HEREUNDER, THE AGREEMENTS AND OBLIGATIONS OF THE
BORROWER CONTAINED IN THIS SECTION 3.9 SHALL SURVIVE THE PAYMENT IN FULL OF
PRINCIPAL AND INTEREST HEREUNDER, THE TERMINATION OF THE LETTERS OF CREDIT AND
THE TERMINATION OF THIS AGREEMENT.
(E)
CASH COLLATERAL.
NOTWITHSTANDING ANYTHING
TO THE CONTRARY HEREIN OR IN ANY APPLICATION FOR A LETTER OF CREDIT, FOLLOWING
THE OCCURRENCE AND DURING THE CONTINUANCE OF A DEFAULT OR UPON PAYOUT OR
TERMINATION OF THIS AGREEMENT IN FULL IN CASH, THE BORROWER SHALL, ON THE
BUSINESS DAY THAT IT RECEIVES LENDER'S DEMAND, DELIVER TO THE LENDER, CASH, OR
OTHER COLLATERAL OF A TYPE SATISFACTORY TO THE LENDER, HAVING A VALUE, AS
DETERMINED BY LENDER, EQUAL TO ONE HUNDRED FIVE PERCENT (105%) OF THE AGGREGATE
DOLLAR AMOUNT OF THE OUTSTANDING L/C OBLIGATIONS.
ANY SUCH COLLATERAL SHALL BE
HELD BY THE LENDER IN A SEPARATE ACCOUNT APPROPRIATELY DESIGNATED AS A CASH
COLLATERAL ACCOUNT IN RELATION TO THIS AGREEMENT AND THE LETTERS OF CREDIT AND
RETAINED BY THE LENDER AS COLLATERAL SECURITY FOR THE BORROWER'S OBLIGATIONS IN
RESPECT OF THIS AGREEMENT AND EACH OF THE LETTERS OF CREDIT.
SUCH AMOUNTS SHALL
BE APPLIED TO REIMBURSE THE LENDER FOR DRAWINGS OR PAYMENTS UNDER OR PURSUANT TO
LETTERS OF CREDIT, OR IF NO SUCH REIMBURSEMENT IS REQUIRED, TO PAYMENT OF SUCH
OF THE OTHER OBLIGATIONS AS THE LENDER SHALL DETERMINE.
AMOUNTS REMAINING IN
ANY CASH COLLATERAL ACCOUNT ESTABLISHED PURSUANT TO THIS SECTION 3.9 WHICH ARE
NOT TO BE APPLIED TO REIMBURSE LENDER FOR AMOUNTS ACTUALLY PAID OR TO BE PAID BY
LENDER IN RESPECT OF A LETTER OF CREDIT. SHALL BE RETURNED TO THE BORROWER
WITHIN ONE (1) BUSINESS DAY (AFTER DEDUCTION OF THE LENDER'S EXPENSES INCURRED
IN CONNECTION WITH SUCH CASH COLLATERAL ACCOUNT).
ARTICLE IV:
CHANGE IN CIRCUMSTANCES
4.1
YIELD PROTECTION.
IF ANY LAW OR ANY
GOVERNMENTAL OR QUASI-GOVERNMENTAL RULE, REGULATION, POLICY, GUIDELINE OR
DIRECTIVE (WHETHER OR NOT HAVING THE FORCE OF LAW) ADOPTED AFTER THE DATE THE
LENDER BECAME A PARTY TO THIS AGREEMENT AND HAVING GENERAL APPLICABILITY TO ALL
BANKS WITHIN THE JURISDICTION IN WHICH LENDER OPERATES (EXCLUDING, FOR THE
AVOIDANCE OF DOUBT, THE EFFECT OF AND PHASING IN OF CAPITAL REQUIREMENTS OR
OTHER REGULATIONS OR GUIDELINES PASSED PRIOR TO THE DATE OF THIS AGREEMENT), OR
ANY INTERPRETATION OR APPLICATION THEREOF BY ANY GOVERNMENTAL AUTHORITY CHARGED
WITH THE INTERPRETATION OR APPLICATION THEREOF, OR THE COMPLIANCE OF ANY LENDER
THEREWITH,
(A)
SUBJECTS LENDER OR ANY APPLICABLE LENDING
INSTALLATION TO ANY TAX, DUTY, CHARGE OR WITHHOLDING ON OR FROM PAYMENTS DUE
FROM THE BORROWER (EXCLUDING TAXATION OF
40
THE OVERALL NET INCOME OF LENDER OR TAXATION OF A SIMILAR BASIS, WHICH ARE
GOVERNED BY SECTION 2.13(E), AND EXCLUDING ANY OTHER TAXES FOR WHICH LENDER HAS
BEEN REIMBURSED BY THE BORROWER), OR CHANGES THE BASIS OF TAXATION OF PAYMENTS
TO LENDER IN RESPECT OF ITS REVOLVING LOAN COMMITMENT, LOANS, THE LETTERS OF
CREDIT