POWER OF ATTORNEY.
THIS POWER OF
ATTORNEY IS COUPLED WITH THE INTERESTS OF THE LENDER IN THE COLLATERAL, SHALL
COMMENCE AND BE IN FULL FORCE AND EFFECT AS OF THE CLOSING DATE AND SHALL REMAIN
IN FULL FORCE AND EFFECT AND SHALL BE IRREVOCABLE SO LONG AS ANY OBLIGATIONS
REMAIN OUTSTANDING OR UNPAID OR ANY COMMITMENT EXISTS.
THE POWERS CONFERRED ON
THE LENDER BY THIS APPOINTMENT ARE SOLELY TO PROTECT THE INTERESTS OF THE LENDER
UNDER THE LOAN DOCUMENTS AND SHALL NOT IMPOSE ANY DUTY UPON THE LENDER TO
EXERCISE ANY SUCH POWERS.
THE LENDER SHALL BE ACCOUNTABLE ONLY FOR AMOUNTS THAT
IT ACTUALLY RECEIVES AS A RESULT OF THE EXERCISE OF SUCH POWERS AND SHALL NOT BE
RESPONSIBLE TO THE BORROWERS OR ANY OTHER PERSON FOR ANY ACT OR FAILURE TO ACT
WITH RESPECT TO SUCH POWERS, EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
2.18
LETTERS OF CREDIT.
(A)
UPON THE TERMS AND CONDITIONS (INCLUDING,
WITHOUT LIMITATION, THE RIGHT OF THE LENDER TO DECLINE TO ISSUE ANY LETTER OF
CREDIT SO LONG AS ANY DEFAULT OR EVENT OF DEFAULT EXISTS) AND RELYING ON THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, THE LENDER AGREES,
DURING THE COMMITMENT PERIOD, TO ISSUE LETTERS OF CREDIT FOLLOWING THE RECEIPT
NOT LESS THAN TWO BUSINESS DAYS PRIOR TO THE REQUESTED DATE FOR ISSUANCE OF THE
RELEVANT LETTER OF CREDIT, OF A LETTER OF CREDIT APPLICATION EXECUTED BY THE
BORROWERS; PROVIDED, HOWEVER, (A) NO LETTER OF CREDIT SHALL HAVE AN EXPIRATION
DATE WHICH IS MORE THAN 360 DAYS AFTER THE ISSUANCE THEREOF OR SUBSEQUENT TO THE
MATURITY DATE, AND (B) THE LENDER SHALL NOT BE OBLIGATED TO ISSUE ANY LETTER OF
CREDIT IF (I) THE FACE AMOUNT THEREOF WOULD EXCEED THE AVAILABLE COMMITMENT, OR
(II) AFTER GIVING EFFECT TO THE ISSUANCE THEREOF, THE L/C EXPOSURE WOULD EXCEED
THE L/C LIMIT.
(B)
SHOULD THE LENDER BE CALLED UPON BY THE
BENEFICIARY OF ANY LETTER OF CREDIT TO HONOR ALL OR ANY PORTION OF THE
COMMITMENT THEREUNDER, WHETHER UPON THE PRESENTATION OF DRAFTS OR OTHERWISE,
SUCH PAYMENT BY THE LENDER ON ACCOUNT OF SUCH LETTER OF CREDIT SHALL BE TREATED,
FOR ALL PURPOSES, AS A FLOATING RATE LOAN AND AN ADVANCE AGAINST THE NOTE.
2.19
LETTER OF CREDIT FEE.
IN ADDITION TO INTEREST ON
THE NOTE AS PROVIDED HEREIN AND ALL OTHER FEES PAYABLE HEREUNDER, THE BORROWERS
AGREE TO PAY TO THE LENDER, ON THE DATE OF ISSUANCE OF EACH LETTER OF CREDIT, A
FEE EQUAL TO THE GREATER OF $750 OR TWO AND ONE-HALF PERCENT (2.50%)
20
PER ANNUM, CALCULATED ON THE BASIS OF A YEAR OF 365 OR 366 DAYS, AS THE CASE MAY
BE, AND ACTUAL DAYS ELAPSED (INCLUDING THE FIRST DAY BUT EXCLUDING THE LAST
DAY), ON THE FACE AMOUNT OF SUCH LETTER OF CREDIT DURING THE PERIOD FOR WHICH
SUCH LETTER OF CREDIT IS ISSUED; PROVIDED, HOWEVER, IN THE EVENT SUCH LETTER OF
CREDIT IS CANCELED PRIOR TO ITS ORIGINAL EXPIRY DATE OR A PAYMENT IS MADE BY THE
LENDER