EXCESS (IF ANY) OF ALL
FUNDS IN SUCH LC COLLATERAL ACCOUNT OVER THE AMOUNT OF THE OBLIGATIONS OF THE
BORROWER WITH RESPECT TO THE OUTSTANDING LETTERS OF CREDIT.
FOR THE AVOIDANCE
OF DOUBT, THE "OBLIGATIONS" REFERENCED IN THIS SECTION 2.6(I) SHALL NOT BE
"OBLIGATIONS" UNDER THIS AGREEMENT.
(J)
IF (A) LETTERS OF CREDIT WILL REMAIN
OUTSTANDING BEYOND THE MATURITY DATE (AND THE NEW LETTER OF CREDIT REIMBURSEMENT
FACILITY AGREEMENT REFERENCED ABOVE IS NOT EFFECTIVE PRIOR TO OR AS OF THE
MATURITY DATE), (B) THE REVOLVING COMMITMENT SHALL TERMINATE PRIOR TO THE
MATURITY DATE, OR (C) THE REIMBURSEMENT OBLIGATIONS WITH RESPECT TO ALL
OUTSTANDING LETTERS OF CREDIT SHALL BE ACCELERATED PRIOR TO THE MATURITY DATE,
THEN THE LC COLLATERAL ACCOUNT WILL BE ESTABLISHED UNDER THIS AGREEMENT AND, TO
THE EXTENT INSUFFICIENT FUNDS (TO COVER THE MAXIMUM AMOUNT THAT MAY BE DRAWN BY
BENEFICIARIES UNDER ALL OUTSTANDING LETTERS OF CREDIT) SHALL HAVE BEEN CREDITED
TO SUCH ACCOUNT ON THE MATURITY DATE, REVOLVING COMMITMENT TERMINATION DATE, OR
DATE OF ACCELERATION OF REIMBURSEMENT OBLIGATIONS, AS APPLICABLE, FUNDED BY
LENDER AS AN ADVANCE UNDER THIS AGREEMENT.
SUCH ADVANCE SHALL BE PAYABLE ON
DEMAND BY BORROWER AND SHALL INITIALLY BEAR INTEREST AT THE BASE RATE.
(k)
Effective on the Closing Date, all
outstanding letters of credit under all outstanding letter of credit
reimbursement facilities between Lender and Borrower or
29
any Guarantor, as amended (the "L/C Agreements") shall be assumed as Letters of
Credit under this Agreement, all obligations under the L/C Agreements and
related security documents shall be deemed satisfied in full, all collateral
securing any of the foregoing shall be immediately released to the applicable
debtor, and the L/C Agreements and related documents shall be deemed terminated
and of no further force or effect.
SECTION 2.7 EVIDENCE OF OBLIGATION TO PAY ADVANCES. THE BORROWER'S OBLIGATION TO
PAY THE ADVANCES SHALL BE EVIDENCED BY THIS AGREEMENT AND THE NOTE AND MAY ALSO
BE EVIDENCED BY ONE OR MORE LOAN ACCOUNTS OR RECORDS MAINTAINED BY THE LENDER.
THE LENDER MAY ATTACH SCHEDULES TO THE NOTE AND ENDORSE THEREON THE DATE, AMOUNT
AND MATURITY OF ITS ADVANCES AND PAYMENTS WITH RESPECT THERETO.
SUCH LOAN
ACCOUNTS, RECORDS OR SCHEDULES SHALL BE CONCLUSIVE ABSENT MANIFEST ERROR OF THE
AMOUNT OF SUCH ADVANCES AND PAYMENTS THEREON.
ANY FAILURE SO TO RECORD OR ANY
ERROR IN DOING SO SHALL NOT, HOWEVER, LIMIT OR OTHERWISE AFFECT THE OBLIGATION
OF THE BORROWER TO PAY ANY AMOUNT OWING WITH RESPECT TO THE ADVANCES.
SECTION 2.8 CHANGE OF CIRCUMSTANCES.
(A)
INABILITY TO DETERMINE RATES. IF, ON OR
BEFORE THE FIRST DAY OF ANY INTEREST PERIOD FOR ANY LIBOR RATE FUNDING, (I) THE
LENDER SHALL DETERMINE THAT THE LIBOR RATE FOR SUCH INTEREST PERIOD CANNOT BE
ADEQUATELY AND REASONABLY DETERMINED DUE TO THE UNAVAILABILITY OF FUNDS IN OR
OTHER CIRCUMSTANCES AFFECTING THE LONDON INTERBANK MARKET OR (II) THE LENDER
SHALL DETERMINE THAT THE APPLICABLE LIBOR RATE DOES NOT ADEQUATELY AND FAIRLY
REFLECT THE COST TO THE LENDER OF MAKING OR MAINTAINING SUCH LIBOR RATE FUNDING,