DEFAULT IN THE
PAYMENT THEREOF.
SECTION 2.23.
LETTERS OF CREDIT.
(A)
GENERAL.
THE BORROWER MAY REQUEST THE
ISSUANCE OF A LETTER OF CREDIT FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANY OF
ITS WHOLLY OWNED SUBSIDIARIES (IN WHICH CASE THE BORROWER AND SUCH WHOLLY OWNED
SUBSIDIARY SHALL BE CO-APPLICANTS WITH RESPECT TO SUCH LETTER OF CREDIT), IN A
FORM REASONABLY ACCEPTABLE TO THE ADMINISTRATIVE AGENT AND THE ISSUING BANK, AT
ANY TIME AND FROM TIME TO TIME WHILE THE REVOLVING CREDIT COMMITMENTS REMAIN IN
EFFECT.
THIS SECTION SHALL NOT BE CONSTRUED TO IMPOSE AN OBLIGATION UPON THE
ISSUING BANK TO ISSUE ANY LETTER OF CREDIT THAT IS INCONSISTENT WITH THE TERMS
AND CONDITIONS OF THIS AGREEMENT.
(B)
NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN CONDITIONS.
IN
ORDER TO REQUEST THE ISSUANCE OF A LETTER OF CREDIT (OR TO AMEND, RENEW OR
EXTEND AN EXISTING LETTER OF CREDIT), THE BORROWER SHALL HAND DELIVER OR FAX TO
THE ISSUING BANK AND THE ADMINISTRATIVE AGENT (REASONABLY IN ADVANCE OF THE
REQUESTED DATE OF ISSUANCE, AMENDMENT, RENEWAL OR EXTENSION) A NOTICE REQUESTING
THE ISSUANCE OF A LETTER OF CREDIT, OR IDENTIFYING THE LETTER OF CREDIT TO BE
AMENDED, RENEWED OR EXTENDED, THE DATE OF ISSUANCE, AMENDMENT, RENEWAL OR
EXTENSION, THE DATE ON WHICH SUCH LETTER OF CREDIT IS TO EXPIRE (WHICH SHALL
COMPLY WITH PARAGRAPH (C) BELOW), THE AMOUNT OF SUCH LETTER OF CREDIT, THE NAME
AND ADDRESS OF THE BENEFICIARY THEREOF AND SUCH OTHER INFORMATION AS SHALL BE
NECESSARY TO PREPARE SUCH LETTER OF CREDIT.
A LETTER OF CREDIT SHALL BE
43
issued, amended, renewed or extended only if, and upon issuance, amendment,
renewal or extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that, after giving effect to such issuance, amendment,
renewal or extension (i) the L/C Exposure shall not exceed $30,000,000 and
(ii) the Aggregate Revolving Credit Exposure shall not exceed the Total
Revolving Credit Commitment.
(C)
EXPIRATION DATE.
EACH LETTER OF CREDIT SHALL EXPIRE AT THE CLOSE OF
BUSINESS ON THE EARLIER OF THE DATE THAT IS ONE YEAR AFTER THE DATE OF THE
ISSUANCE OF SUCH LETTER OF CREDIT AND THE DATE THAT IS FIVE BUSINESS DAYS PRIOR
TO THE REVOLVING CREDIT MATURITY DATE, UNLESS SUCH LETTER OF CREDIT EXPIRES BY
ITS TERMS ON AN EARLIER DATE; PROVIDED, HOWEVER, THAT A LETTER OF CREDIT MAY,
UPON THE REQUEST OF THE BORROWER, INCLUDE A PROVISION WHEREBY SUCH LETTER OF
CREDIT SHALL BE RENEWED AUTOMATICALLY FOR ADDITIONAL CONSECUTIVE PERIODS OF
12 MONTHS OR LESS (BUT NOT BEYOND THE DATE THAT IS FIVE BUSINESS DAYS PRIOR TO
THE REVOLVING CREDIT MATURITY DATE) UNLESS THE ISSUING BANK NOTIFIES THE
BENEFICIARY THEREOF AT LEAST 30 DAYS PRIOR TO THE THEN APPLICABLE EXPIRATION
DATE THAT SUCH LETTER OF CREDIT WILL NOT BE RENEWED.
(D)
PARTICIPATIONS.
BY THE ISSUANCE OF A LETTER OF CREDIT AND WITHOUT ANY
FURTHER ACTION ON THE PART OF THE ISSUING BANK OR THE LENDERS, THE ISSUING BANK
HEREBY GRANTS TO EACH REVOLVING