THE LOANS REFERRED TO
IN SUBSECTION 2.8(B) AND TO PURCHASE PARTICIPATING INTERESTS PURSUANT TO
SUBSECTION 2.8(D) SHALL BE ABSOLUTE, IRREVOCABLE AND UNCONDITIONAL AND SHALL NOT
BE AFFECTED BY ANY CIRCUMSTANCE, INCLUDING, WITHOUT LIMITATION, (I) ANY SET-OFF,
COUNTERCLAIM, RECOUPMENT, DEFENSE OR OTHER RIGHT WHICH SUCH LENDER OR THE
BORROWER MAY HAVE AGAINST THE SWING LINE LENDER, THE BORROWER OR ANY OTHER
PERSON FOR ANY REASON WHATSOEVER, (II) THE OCCURRENCE OR CONTINUANCE OF A
DEFAULT OR AN EVENT OF DEFAULT; (III) ANY ADVERSE CHANGE IN THE CONDITION
(FINANCIAL OR OTHERWISE) OF THE BORROWER OR ANY OTHER LOAN PARTY; (IV) ANY
BREACH OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT BY THE BORROWER OR ANY OF
ITS SUBSIDIARIES OR ANY OTHER LENDER; OR (V) ANY OTHER CIRCUMSTANCE, HAPPENING
OR EVENT WHATSOEVER, WHETHER OR NOT SIMILAR TO ANY OF THE FOREGOING.
SECTION 3.
LETTERS OF CREDIT
3.1.
Letters of Credit.
Subject to the terms and conditions of this
Agreement, the Issuing Lender agrees, on behalf of the Revolving Lenders, and in
reliance on the agreement of the Revolving Lenders set forth in subsection 3.3,
to issue for the account of the Borrower letters of credit in an aggregate face
amount, together with any unpaid Reimbursement Obligations, not to exceed
$25,000,000 at any time outstanding, as follows:
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(I)
STANDBY LETTERS OF CREDIT (COLLECTIVELY, THE "STANDBY LETTERS OF
CREDIT") IN A FORM REASONABLY SATISFACTORY TO THE ISSUING LENDER AND IN FAVOR OF
SUCH BENEFICIARIES AS THE BORROWER SHALL SPECIFY FROM TIME TO TIME (WHICH SHALL
BE REASONABLY SATISFACTORY TO THE ISSUING LENDER); AND
(II)
COMMERCIAL LETTERS OF CREDIT IN THE FORM OF THE ISSUING LENDER'S
STANDARD COMMERCIAL LETTERS OF CREDIT ("COMMERCIAL LETTERS OF CREDIT") IN FAVOR
OF SELLERS OF GOODS OR SERVICES TO THE BORROWER OR ITS SUBSIDIARIES (THE STANDBY
LETTERS OF CREDIT AND COMMERCIAL LETTERS OF CREDIT BEING REFERRED TO
COLLECTIVELY AS THE "LETTERS OF CREDIT", IT BEING UNDERSTOOD THAT EXISTING
LETTERS OF CREDIT SHALL BE DEEMED TO BE "LETTERS OF CREDIT" FOR ALL PURPOSES
UNDER THE LOAN DOCUMENTS);
provided that on the date of the issuance of any Letter of Credit, and after
giving effect to such issuance, the Aggregate Revolving Credit Outstanding of
all Revolving Lenders does not exceed the Aggregate Revolving Credit Commitments
at such time.
Each Standby Letter of Credit shall (i) have an expiry date no
later than one year from the date of issuance thereof or, if earlier, five
Business Days prior to the Revolving Credit Termination Date, (ii) be
denominated in U.S. Dollars and (iii) be in a minimum face amount of $100,000.
Each Commercial Letter of Credit shall (i) provide for the payment of sight
drafts when presented for honor thereunder, or of time drafts, in each case in
accordance with the terms thereof and when accompanied by the documents
described or when such documents are presented, as the case may be, (ii) be
denominated in U.S. Dollars and (iii) have an expiry date no later than six
months from the date of issuance thereof