OF
ANY SUCH NOTIFICATION (IF ANY) BY THE BANK IS HEREIN CALLED A "DETERMINATION
DATE" AND ANY INCREASE OR REDUCTION IN THE INTERNATIONAL BORROWING BASE BY THE
BANK SHALL BE EFFECTIVE AS OF SUCH DATE.
EACH DETERMINATION OF THE
INTERNATIONAL BORROWING BASE SHALL BE MADE BY THE BANK IN ITS REASONABLE
BUSINESS JUDGMENT, BASED ON THE MOST RECENT WEEKLY INTERNATIONAL BORROWING BASE
CERTIFICATE FURNISHED BY THE BORROWER AND OTHER INFORMATION AVAILABLE TO THE
BANK.
3
2.3
LETTERS OF CREDIT.
(A)
SUBJECT TO AND UPON THE TERMS AND
CONDITIONS HEREIN SET FORTH, INCLUDING, WITHOUT LIMITATION, THE APPLICABLE TERMS
AND CONDITIONS SET FORTH IN ARTICLE VII HEREOF, THE BANK AGREES THAT IT WILL,
FOLLOWING ITS RECEIPT OF A LETTER OF CREDIT REQUEST, ISSUE OR CAUSE TO BE ISSUED
FOR THE ACCOUNT OF THE BORROWER ONE OR MORE IRREVOCABLE STANDBY LETTERS OF
CREDIT WHICH CAN BE DRAWN DOWN BY A BUYER ONLY IF THE BORROWER, ANY GUARANTOR OR
AN ELIGIBLE JOINT VENTURE FAILS TO PERFORM ANY OF ITS OBLIGATIONS UNDER AN
EXPORT ORDER (EACH A "LETTER OF CREDIT" AND COLLECTIVELY, THE "LETTERS OF
CREDIT"); PROVIDED THAT THE BANK SHALL BE UNDER NO OBLIGATION TO ISSUE OR CAUSE
TO BE ISSUED ANY LETTER OF CREDIT IF AT THE TIME OF SUCH ISSUANCE:
(I)
ANY ORDER, JUDGMENT OR DECREE OF ANY
GOVERNMENTAL AUTHORITY OR ARBITRATOR SHALL PURPORT BY ITS TERMS TO ENJOIN OR
RESTRAIN THE BANK OR WELLS FARGO FROM ISSUING SUCH LETTER OF CREDIT OR ANY
REQUIREMENT OF LAW APPLICABLE TO THE BANK OR WELLS FARGO OR ANY REQUEST OR
DIRECTIVE (WHETHER OR NOT HAVING THE FORCE OF LAW) FROM ANY GOVERNMENTAL
AUTHORITY WITH JURISDICTION OVER THE BANK OR WELLS FARGO SHALL PROHIBIT, OR
REQUEST THAT THE BANK OR WELLS FARGO REFRAIN FROM, THE ISSUANCE OF LETTERS OF
CREDIT GENERALLY; OR
(II)
SUBJECT TO ANY COVER REQUIREMENTS SET
FORTH IN SECTION 10.3 OF THIS AGREEMENT, (X) 25% OF THE STATED AMOUNT OF SUCH
LETTER OF CREDIT PLUS (Y) 25% OF THE AGGREGATE STATED AMOUNT OF ALL OUTSTANDING
LETTERS OF CREDIT PLUS (Z) 100% OF THE AGGREGATE UNPAID DRAWINGS THEN
OUTSTANDING (AFTER GIVING EFFECT TO ALL UNPAID DRAWINGS REIMBURSED PRIOR TO OR
CONCURRENTLY WITH THE ISSUANCE OF SUCH LETTER OF CREDIT) EXCEEDS THE
INTERNATIONAL BORROWING BASE THEN IN EFFECT; OR
(III)
IF THE STATED AMOUNT OF SUCH LETTER OF
CREDIT PLUS ALL LETTER OF CREDIT OUTSTANDINGS (AFTER GIVING EFFECT TO ALL UNPAID
DRAWINGS REIMBURSED PRIOR TO OR CONCURRENTLY WITH THE ISSUANCE OF SUCH LETTER OF
CREDIT) EXCEEDS THE COMMITMENT; OR
(IV)
UNLESS THE BANK AND EX-IM BANK SHALL GIVE
THEIR PRIOR WRITTEN CONSENT IN THEIR SOLE DISCRETION, THE EXPIRY DATE OF SUCH
LETTER OF CREDIT IS LATER THAN 12 MONTHS FROM THE DATE OF ISSUANCE OF SUCH
LETTER OF CREDIT; PROVIDED HOWEVER, THE BANK MAY ISSUE OR CAUSE TO BE ISSUED THE
DIYAAR PROJECT LETTER OF CREDIT SO LONG AS THE DIYAAR PROJECT LETTER OF CREDIT
SHALL HAVE AN EXPIRY DATE OF NOT LATER THAN THE LESSER OF (A) 27 MONTHS FROM THE
DATE