OF CREDIT.
5.1
Letter of Credit Commitment.
5.1.1
COMMITMENT TO ISSUE LETTERS OF CREDIT.
SUBJECT TO THE TERMS AND
CONDITIONS HEREOF AND THE EXECUTION AND DELIVERY BY THE BORROWERS OF A LETTER OF
CREDIT APPLICATION ON THE APPLICABLE L/C ISSUER'S CUSTOMARY FORM (A "LETTER OF
CREDIT APPLICATION"), EACH L/C ISSUER ON BEHALF OF THE LENDERS AND IN RELIANCE
UPON THE AGREEMENT OF THE LENDERS SET FORTH IN §5.1.4 AND UPON THE
REPRESENTATIONS AND WARRANTIES OF THE BORROWERS CONTAINED HEREIN, AGREES, IN ITS
INDIVIDUAL CAPACITY, TO ISSUE, EXTEND AND RENEW FOR THE ACCOUNT OF THE
BORROWERS, IN ACCORDANCE WITH SUCH L/C ISSUER'S USUAL AND CUSTOMARY BUSINESS
PRACTICES, ONE OR MORE STANDBY OR DOCUMENTARY LETTERS OF CREDIT (DENOMINATED IN
DOLLARS) (INDIVIDUALLY, A "LETTER OF CREDIT"), IN SUCH FORM AS MAY BE REQUESTED
FROM TIME TO TIME BY THE BORROWERS AND AGREED TO BY SUCH L/C ISSUER; PROVIDED,
HOWEVER, THAT, AFTER GIVING EFFECT TO SUCH REQUEST, (A) THE SUM OF THE AGGREGATE
MAXIMUM DRAWING AMOUNT AND ALL UNPAID REIMBURSEMENT OBLIGATIONS SHALL NOT EXCEED
$40,000,000 AT ANY ONE TIME AND (B) THE SUM OF THE AGGREGATE MAXIMUM DRAWING
AMOUNT AND ALL UNPAID REIMBURSEMENT OBLIGATIONS PLUS THE OUTSTANDING AMOUNT OF
THE REVOLVING CREDIT LOANS SHALL NOT, AT ANY TIME, EXCEED THE TOTAL REVOLVING
CREDIT COMMITMENT.
NOTWITHSTANDING THE FOREGOING, NO L/C ISSUER SHALL HAVE ANY
OBLIGATION TO ISSUE ANY LETTER OF CREDIT:
(A)
TO SUPPORT OR SECURE ANY INDEBTEDNESS OF ANY OF THE BORROWERS OR
THEIR SUBSIDIARIES TO THE EXTENT THAT SUCH INDEBTEDNESS WAS INCURRED PRIOR TO
THE PROPOSED ISSUANCE DATE OF SUCH LETTER OF CREDIT, UNLESS IN ANY SUCH CASE THE
BORROWERS DEMONSTRATE TO THE SATISFACTION OF SUCH L/C ISSUER AND THE AGENT THAT
(X) SUCH PRIOR INCURRED INDEBTEDNESS WAS THEN FULLY SECURED BY A PRIOR PERFECTED
AND UNAVOIDABLE SECURITY INTEREST IN COLLATERAL PROVIDED BY THE BORROWERS OR
SUCH SUBSIDIARY TO THE PROPOSED BENEFICIARY OF SUCH LETTER OF CREDIT OR (Y) SUCH
PRIOR INCURRED INDEBTEDNESS WERE THEN SECURED OR SUPPORTED BY A LETTER OF CREDIT
ISSUED FOR THE ACCOUNT OF SUCH BORROWER OR SUCH SUBSIDIARY AND THE REIMBURSEMENT
OBLIGATION WITH RESPECT TO SUCH LETTER OF CREDIT WAS FULLY SECURED BY A PRIOR
PERFECTED AND UNAVOIDABLE SECURITY INTEREST IN COLLATERAL PROVIDED TO THE ISSUER
OF SUCH LETTER OF CREDIT BY SUCH BORROWER OR SUCH SUBSIDIARY; AND
(B)
UPON THE OCCURRENCE OF ANY OF THE FOLLOWING: (I) ANY FEE DUE IN
CONNECTION WITH, AND ON OR PRIOR TO, SUCH ISSUANCE HAS NOT BEEN PAID, (II) SUCH
LETTER OF CREDIT IS REQUESTED TO BE ISSUED IN A FORM THAT IS NOT ACCEPTABLE TO
SUCH L/C ISSUER OR (III) SUCH L/C ISSUER SHALL NOT HAVE RECEIVED, EACH IN FORM
AND SUBSTANCE REASONABLY ACCEPTABLE TO IT AND DULY EXECUTED BY THE BORROWERS THE
DOCUMENTS THAT SUCH L/C ISSUER GENERALLY USES IN THE ORDINARY COURSE OF ITS
BUSINESS FOR THE ISSUANCE OF LETTERS OF CREDIT OF THE TYPE OF SUCH LETTER OF
CREDIT (COLLECTIVELY, THE "L/C REIMBURSEMENT AGREEMENT").
For each issuance, extension of the expiration date of, or renewal of a