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 LETTER