OF CREDIT SHALL BE FULLY REVOLVING, AND ACCORDINGLY THE
BORROWER MAY, DURING THE FOREGOING PERIOD, OBTAIN NON-ROLLUP LETTERS OF CREDIT
TO REPLACE NON-ROLLUP LETTERS OF CREDIT THAT HAVE EXPIRED OR THAT HAVE BEEN
DRAWN UPON AND REIMBURSED.
(II)
NO ISSUING BANK SHALL BE UNDER ANY
OBLIGATION TO ISSUE ANY NON-ROLLUP LETTER OF CREDIT IF:
(A) ANY ORDER, JUDGMENT
OR DECREE OF ANY GOVERNMENTAL AUTHORITY OR ARBITRATOR SHALL BY ITS TERMS PURPORT
TO ENJOIN OR RESTRAIN SUCH ISSUING BANK FROM ISSUING SUCH NON-ROLLUP LETTER OF
CREDIT, OR ANY LAW APPLICABLE TO SUCH ISSUING BANK OR ANY REQUEST OR DIRECTIVE
(WHETHER OR NOT HAVING THE FORCE OF LAW) FROM
38
ANY GOVERNMENTAL AUTHORITY WITH JURISDICTION OVER SUCH ISSUING BANK SHALL
PROHIBIT, OR REQUEST THAT SUCH ISSUING BANK REFRAIN FROM, THE ISSUANCE OF
LETTERS OF CREDIT GENERALLY OR SUCH NON-ROLLUP LETTER OF CREDIT IN PARTICULAR OR
SHALL IMPOSE UPON SUCH ISSUING BANK ANY UNREIMBURSED LOSS, COST OR EXPENSE WHICH
SUCH ISSUING BANK IN GOOD FAITH DEEMS MATERIAL TO IT; (B) THE EXPIRY DATE OF
SUCH REQUESTED NON-ROLLUP LETTER OF CREDIT WOULD OCCUR AFTER THE LETTER OF
CREDIT EXPIRATION DATE, UNLESS ALL THE NON-ROLLUP REVOLVING CREDIT LENDERS HAVE
APPROVED SUCH EXPIRY DATE; (C) THE ISSUANCE OF SUCH NON-ROLLUP LETTER OF CREDIT
WOULD VIOLATE ONE OR MORE POLICIES OF SUCH ISSUING BANK; OR (D) SUCH NON-ROLLUP
LETTER OF CREDIT IS IN AN INITIAL AMOUNT LESS THAN $100,000 (UNLESS SUCH ISSUING
BANK AGREES OTHERWISE), OR IS TO BE DENOMINATED IN A CURRENCY OTHER THAN U.S.
DOLLARS.
(III)
NO ISSUING BANK SHALL BE UNDER ANY
OBLIGATION TO AMEND ANY NON-ROLLUP LETTER OF CREDIT IF (A) SUCH ISSUING BANK
WOULD HAVE NO OBLIGATION AT SUCH TIME TO ISSUE SUCH NON-ROLLUP LETTER OF CREDIT
IN ITS AMENDED FORM UNDER THE TERMS HEREOF, OR (B) THE BENEFICIARY OF SUCH
NON-ROLLUP LETTER OF CREDIT DOES NOT ACCEPT THE PROPOSED AMENDMENT TO SUCH
NON-ROLLUP LETTER OF CREDIT.
(IV)
NON-ROLLUP LETTERS OF CREDIT MAY BE ISSUED FOR
THE ACCOUNT OF A SUBSIDIARY THAT IS NOT A LOAN PARTY SO LONG AS SUCH SUBSIDIARY
IS PRIMARILY LIABLE FOR ITS REIMBURSEMENT OBLIGATIONS THEREUNDER PURSUANT TO A
SEPARATE REIMBURSEMENT AGREEMENT ENTERED INTO BETWEEN SUCH SUBSIDIARY AND THE
APPLICABLE ISSUING BANK, TO THE EXTENT PRACTICABLE (IN THE ISSUING BANK'S SOLE
DISCRETION).
(V)
IN ADDITION TO THE OTHER CONDITIONS
PRECEDENT HEREIN SET FORTH, IF ANY NON-ROLLUP LENDER BECOMES, AND DURING THE
PERIOD IT REMAINS, A DEFAULTING LENDER OR A POTENTIAL DEFAULTING LENDER, NO
ISSUING BANK SHALL BE REQUIRED TO ISSUE ANY NON-ROLLUP LETTER OF CREDIT OR TO
AMEND ANY OUTSTANDING NON-ROLLUP LETTER OF CREDIT TO INCREASE THE FACE AMOUNT
THEREOF, ALTER THE DRAWING TERMS THEREUNDER OR EXTEND THE EXPIRY DATE THEREOF,
UNLESS SUCH ISSUING BANK IS SATISFIED THAT ANY EXPOSURE THAT WOULD RESULT
THEREFROM IS ELIMINATED OR FULLY COVERED BY THE NON-ROLLUP REVOLVING CREDIT
COMMITMENTS OF THE NON-DEFAULTING LENDERS OR BY CASH COLLATERALIZATION OR A
COMBINATION THEREOF REASONABLY SATISFACTORY TO SUCH ISSUING BANK.
(B)
PROCEDURES FOR ISSUANCE AND AMENDMENT OF
NON-ROLLUP LETTERS OF CREDIT.
(I)
EACH NON-ROLLUP