DISCRETION, SUBJECT TO THE NEXT
SUCCEEDING SENTENCE, ISSUE LETTERS OF CREDIT IN ALL MATERIAL RESPECTS IN THE
FORM ATTACHED AS EXHIBIT S OR SUCH OTHER FORM AS MAY BE APPROVED BY THE BUYERS,
DULY COMPLETED AND IN SUCH AGGREGATE FACE AMOUNT NOT TO
44
EXCEED $30,000,000, TAKING INTO ACCOUNT ALL OUTSTANDING LETTERS OF CREDIT ISSUED
HEREUNDER, AS THE SELLERS MAY REQUEST (BUT IN ANY EVENT IN A MINIMUM FACE AMOUNT
OF NOT LESS THAN $5,000,000) AND WHICH SHALL EXPIRE NO LATER THAN THE EARLIER TO
OCCUR OF (I) THE DATE WHICH IS ONE (1) YEAR FOLLOWING THE ISSUANCE THEREOF, AND
(II) THE DATE OCCURRING THIRTY (30) DAYS PRIOR TO THE TERMINATION DATE, UNLESS,
IN EITHER CASE, THE SELLERS SHALL HAVE DEPOSITED IN A CASH COLLATERAL ACCOUNT
OPENED WITH THE AGENT AN AMOUNT (IN U.S. DOLLARS) EQUAL TO THE AGGREGATE THEN
UNDRAWN AND UNEXPIRED AMOUNT OF SUCH LETTERS OF CREDIT EXPIRING SUBSEQUENT TO
THE DATE WHICH IS THE EARLIER OF (I) AND (II) ABOVE, PROVIDED THAT AFTER GIVING
EFFECT TO THE ISSUANCE OF ANY SUCH LETTER OF CREDIT, THE AGGREGATE LETTER OF
CREDIT LIABILITY PLUS THE AGGREGATE REPURCHASE PRICE OF ALL PURCHASED ASSETS
SUBJECT TO TRANSACTIONS THEN OUTSTANDING AS OF SUCH DATE SHALL NOT EXCEED THE
AGGREGATE ASSET VALUE OF ALL PURCHASED ASSETS SUBJECT TO TRANSACTIONS THEN
OUTSTANDING.
IMMEDIATELY FOLLOWING AN EVENT OF DEFAULT, THE SELLER SHALL
DEPOSIT IN A CASH COLLATERAL ACCOUNT OPENED WITH THE AGENT AN AMOUNT (IN U.S.
DOLLARS) EQUAL TO THE AMOUNT OF ANY OUTSTANDING LETTERS OF CREDIT.
NOTWITHSTANDING THE FOREGOING, THE BUYERS SHALL NOT ISSUE ANY LETTER OF CREDIT:
(I)
IF THE ISSUANCE OF SUCH LETTER OF CREDIT WOULD VIOLATE A GENERALLY
APPLICABLE POLICY OF ANY BUYER;
(II)
IN CONNECTION WITH TRANSACTIONS INVOLVING ARMAMENTS, MUNITIONS OR
HOSTILE TAKEOVERS;
(III)
IF THE ISSUANCE OF SUCH LETTER OF CREDIT SHALL NOT BE PERMITTED UNDER
APPLICABLE LAW;
(IV)
IF THE LETTER OF CREDIT FEE HAS NOT BEEN REMITTED TO THE AGENT;
(V)
IF AN EVENT OF DEFAULT HAS OCCURRED OR IS OCCURRING AND THE SELLERS HAVE
NOT DEPOSITED IN A CASH COLLATERAL ACCOUNT OPENED WITH THE AGENT AN AMOUNT (IN
U.S. DOLLARS) EQUAL TO THE FACE AMOUNT OF THE REQUESTED LETTER OF CREDIT;
(VI)
IF THERE ARE THREE (3) LETTERS OF CREDIT OUTSTANDING UNDER THE
AGREEMENT; OR
(VII)
IF THERE ARE LESS THAN THREE (3) MORTGAGE ASSETS HELD BY THE BUYER UNDER
THIS AGREEMENT,
but shall instead in these instances use its reasonable efforts to request
another lender to issue such Letter of Credit, it being understood and agreed
that no other lender shall be under any obligation to issue such Letter of
Credit pursuant to this Section 3.07(a).
(B)
EACH APPLICATION FOR LETTERS OF CREDIT ("REQUEST FOR LETTER OF
CREDIT") SHALL BE SUBMITTED TO THE AGENT IN THE FORM ATTACHED HERETO AS
EXHIBIT T (WITH BLANKS APPROPRIATELY COMPLETED IN CONFORMITY HEREWITH)
ACCOMPANIED BY A LETTER OF CREDIT BORROWING BASE CERTIFICATE, A COMPLIANCE
CERTIFICATE AND SUCH OTHER INFORMATION AS THE AGENT, IN ITS REASONABLE
DISCRETION, MAY REASONABLY REQUIRE,