AND (II) IF REQUIRED BY AGENT AND ISSUING LENDER, UPON
EXECUTION AND DELIVERY OF A LETTER OF CREDIT AGREEMENT IN FORM AND SUBSTANCE
SATISFACTORY TO AGENT AND ISSUING LENDER, ISSUING LENDER WILL, SUBJECT TO THE
OTHER TERMS AND CONDITIONS OF THIS AGREEMENT, ISSUE SUCH LETTER OF CREDIT.
IN
THE EVENT AND TO THE EXTENT THAT THE PROVISIONS OF ANY LETTER OF CREDIT
AGREEMENT SHALL CONFLICT WITH THIS AGREEMENT, THE PROVISIONS OF THIS AGREEMENT
SHALL GOVERN.
4.2
REIMBURSEMENT AND OTHER PAYMENTS. BORROWERS AGREE TO PAY TO AGENT
IMMEDIATELY UPON DEMAND OF AGENT OR ISSUING LENDER FOR REIMBURSEMENT TO ISSUING
LENDER (I) AT THE TIME WHEN ISSUING LENDER SHALL PAY ANY DRAFT PRESENTED UNDER
ANY LETTER OF CREDIT, A SUM EQUAL TO THE AMOUNT SO PAID UNDER SUCH LETTER OF
CREDIT, PLUS (II) INTEREST ON ANY AMOUNT REMAINING UNPAID BY BORROWERS TO
ISSUING LENDER UNDER CLAUSE (I) ABOVE FROM SUCH TIME UNTIL PAYMENT IN FULL AT AN
INTEREST RATE EQUAL TO (X) UNTIL THE END OF THE BUSINESS DAY NEXT FOLLOWING THE
PAYMENT OF ANY DRAFT, THE ADJUSTED LIBOR MARKET INDEX RATE, AND (Y) THEREAFTER,
THE ADJUSTED LIBOR MARKET INDEX RATE PLUS TWO PERCENT (2.0%).
4.3
ADDITIONAL REMEDIES.
IN ADDITION TO ANY RIGHTS AND REMEDIES THE
LENDER PARTIES MAY OTHERWISE HAVE UNDER THIS AGREEMENT, IF (I) ANY DEFAULT SHALL
HAVE OCCURRED, AGENT OR ISSUING LENDER MAY IN THEIR DISCRETION BY NOTICE TO
BORROWERS, DECLARE THE OBLIGATION OF ISSUING
44
LENDER TO ISSUE ANY LETTER OF CREDIT TO BE TERMINATED, WHEREUPON THE OBLIGATION
OF ISSUING LENDER TO ISSUE ANY LETTER OF CREDIT SHALL FORTHWITH TERMINATE, AND
(II) ANY EVENT OF DEFAULT SHALL HAVE OCCURRED, AGENT MAY MAKE DEMAND UPON
BORROWERS TO, AND FORTHWITH UPON SUCH DEMAND BORROWERS WILL PAY TO AGENT IN SAME
DAY FUNDS AT AGENT'S OFFICE DESIGNATED IN SUCH DEMAND, FOR DEPOSIT IN A SPECIAL
CASH COLLATERAL ACCOUNT TO BE MAINTAINED WITH COLLATERAL AGENT, AN AMOUNT EQUAL
TO THE MAXIMUM AMOUNT THEN AVAILABLE TO BE DRAWN UNDER THE LETTERS OF CREDIT.
THE CASH COLLATERAL ACCOUNT SHALL BE IN THE NAME OF BORROWERS, BUT UNDER THE
SOLE DOMINION AND CONTROL OF COLLATERAL AGENT, AND SHALL BE HELD AND DISBURSED
AS FOLLOWS:
(A)
COLLATERAL AGENT MAY FROM TIME TO TIME INVEST FUNDS ON DEPOSIT IN
THE CASH COLLATERAL ACCOUNT, REINVEST PROCEEDS OF ANY SUCH INVESTMENTS WHICH MAY
MATURE OR BE SOLD, AND INVEST INTEREST OR OTHER INCOME RECEIVED FROM ANY SUCH
INVESTMENTS, AND ALL SUCH INVESTMENTS AND REINVESTMENTS SHALL, FOR PURPOSES OF
THIS AGREEMENT, CONSTITUTE PART OF THE FUNDS HELD IN THE CASH COLLATERAL
ACCOUNT.
(B)
IF AT ANY TIME AGENT OR COLLATERAL AGENT DETERMINES THAT ANY FUNDS
HELD IN THE CASH COLLATERAL ACCOUNT ARE SUBJECT TO ANY RIGHT OR CLAIM OF ANY
PERSON OTHER THAN CLAIMS ARISING UNDER THIS AGREEMENT OR THAT THE TOTAL AMOUNT
OF SUCH FUNDS IS LESS THAN THE MAXIMUM AMOUNT AT SUCH TIME AVAILABLE TO BE DRAWN
UNDER THE LETTERS OF CREDIT, BORROWERS WILL, FORTHWITH UPON DEMAND BY AGENT OR
COLLATERAL AGENT, PAY TO COLLATERAL AGENT, AS