DUE TO IT UNDER THIS CREDIT AGREEMENT PURSUANT TO SECTION
2.11 OR 2.12.
EACH LENDER FURTHER AGREES THAT IT WILL USE REASONABLE EFFORTS
NOT MATERIALLY DISADVANTAGEOUS TO IT (IN ITS REASONABLE DETERMINATION) IN ORDER
TO AVOID OR MINIMIZE, AS THE CASE MAY BE, THE PAYMENT BY THE BORROWERS OF ANY
ADDITIONAL AMOUNTS PURSUANT TO SECTION 2.11 OR 2.12.
EACH LENDER REPRESENTS, TO
THE BEST OF ITS KNOWLEDGE, THAT AS OF THE RESTATEMENT DATE NO SUCH AMOUNTS ARE
PAYABLE TO IT.
B.
BORROWERS SHALL NOT BE LIABLE TO ANY
LENDER FOR ANY PAYMENTS UNDER SECTION 2.11 OR 2.12 ARISING TO THE EXTENT OF SUCH
LENDER'S GROSS NEGLIGENCE OR WILFUL MISCONDUCT OR BREACH OF ANY LAWS (OTHER THAN
AS A RESULT OF BORROWERS' BREACH), OR FOR AMOUNTS WHICH WERE INCURRED MORE THAN
NINETY (90) DAYS PRIOR TO THE DATE BORROWERS ARE NOTIFIED OF THE INCURRENCE OF
SUCH AMOUNT.
SECTION 2.14.
ISSUANCE OF LETTERS OF CREDIT.
A.
SUBJECT TO THE PROVISIONS SET FORTH IN
SECTION 5.29(E), ANY AUTHORIZED OFFICER OF BORROWERS MAY FROM TIME TO TIME
REQUEST THAT A STANDBY LETTER OF CREDIT OR COMMERCIAL LETTER OF CREDIT BE ISSUED
BY DELIVERING TO L/C ISSUER (WITH A TELECOPY TO THE AGENT BANK) ON A BANKING
BUSINESS DAY, AT LEAST FIVE (5) BANKING BUSINESS DAYS PRIOR TO THE DATE OF SUCH
PROPOSED ISSUANCE, AN L/C AGREEMENT IN L/C ISSUER'S THEN STANDARD FORM
(CONSISTENT WITH THE TERMS OF THE CREDIT AGREEMENT), COMPLETED TO THE
SATISFACTION OF L/C ISSUER AND SUCH OTHER CERTIFICATES AS THE L/C ISSUER MAY
REASONABLY REQUEST; PROVIDED, HOWEVER, THAT NO LETTER OF CREDIT SHALL BE ISSUED
(A) IF ANY DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND REMAINS CONTINUING, OR
(B) IF AFTER GIVING EFFECT TO THE ISSUANCE THEREOF, THE AGGREGATE STATED AMOUNT
OF OUTSTANDING LETTERS OF CREDIT WOULD
85
EXCEED SIXTY MILLION DOLLARS ($60,000,000.00), OR (C) THE STATED AMOUNT OF THE
REQUESTED LETTER OF CREDIT EXCEEDS THE MAXIMUM AVAILABILITY.
EACH LETTER OF
CREDIT SHALL BE ISSUED BY THE L/C ISSUER ON THE BANKING BUSINESS DAY SPECIFIED
IN THE BORROWER'S APPLICATION THEREFOR.
EACH REQUEST FOR A LETTER OF CREDIT AND
EACH LETTER OF CREDIT SHALL BE SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR
DOCUMENTARY CREDITS, INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NEW 1994
REVISION NO. 500, OR ANY SUCCESSOR PUBLICATION THEN IN EFFECT.
EACH COMMERCIAL
LETTER OF CREDIT WILL BE ISSUED FOR A TERM NOT GREATER THAN ONE HUNDRED EIGHTY
(180) CALENDAR DAYS.
IN NO EVENT SHALL ANY LETTER OF CREDIT HAVE A STATED
EXPIRY DATE LATER THAN THIRTY (30) DAYS PRIOR TO THE MATURITY DATE.
PROMPTLY
AFTER RECEIPT OF EACH REQUEST FOR THE ISSUANCE OF A LETTER OF CREDIT AND
IMMEDIATELY PRIOR TO THE ISSUANCE THEREOF, L/C ISSUER SHALL OBTAIN TELEPHONIC
VERIFICATION FROM AGENT BANK THAT THE AMOUNT OF SUCH REQUEST DOES NOT EXCEED THE
THEN AVAILABLE BORROWINGS.
THE L/C ISSUER SHALL PROMPTLY NOTIFY THE AGENT BANK
OF THE AGGREGATE L/C EXPOSURE OF OUTSTANDING LETTERS OF CREDIT EACH TIME THERE
IS A CHANGE THEREIN.
B.
UPON PRESENTATION OF A DRAFT