TO THE MAKING OF A REVOLVING CREDIT LOAN PURSUANT TO
PARAGRAPH (B) OF THIS SUBSECTION 2.5 ONE OF THE EVENTS DESCRIBED IN PARAGRAPH
(H) OF SECTION 9 SHALL HAVE OCCURRED AND BE CONTINUING WITH RESPECT TO THE
BORROWER, EACH LENDER WITH A REVOLVING CREDIT COMMITMENT WILL, ON THE DATE SUCH
REVOLVING CREDIT LOAN WAS TO HAVE BEEN MADE PURSUANT TO THE NOTICE IN THIS
SUBSECTION 2.5, PURCHASE AN UNDIVIDED PARTICIPATING INTEREST IN THE REFUNDED
SWING LINE LOANS IN AN AMOUNT EQUAL TO (I) ITS REVOLVING CREDIT COMMITMENT
PERCENTAGE TIMES (II) THE REFUNDED SWING LINE LOANS.
EACH LENDER WILL
IMMEDIATELY TRANSFER TO THE SWING LINE LENDER, IN IMMEDIATELY AVAILABLE FUNDS,
THE AMOUNT OF ITS PARTICIPATION, AND UPON RECEIPT THEREOF THE SWING LINE LENDER
WILL DELIVER TO SUCH LENDER A SWING LINE LOAN PARTICIPATION CERTIFICATE DATED
THE DATE OF RECEIPT OF SUCH FUNDS AND IN SUCH AMOUNT.
25
(E)
WHENEVER, AT ANY TIME AFTER ANY LENDER HAS PURCHASED A
PARTICIPATING INTEREST IN A SWING LINE LOAN, THE SWING LINE LENDER RECEIVES ANY
PAYMENT ON ACCOUNT THEREOF, THE SWING LINE LENDER WILL DISTRIBUTE TO SUCH LENDER
ITS PARTICIPATING INTEREST IN SUCH AMOUNT (APPROPRIATELY ADJUSTED, IN THE CASE
OF INTEREST PAYMENTS, TO REFLECT THE PERIOD OF TIME DURING WHICH SUCH LENDER'S
PARTICIPATING INTEREST WAS OUTSTANDING AND FUNDED); PROVIDED, HOWEVER, THAT IN
THE EVENT THAT SUCH PAYMENT RECEIVED BY THE SWING LINE LENDER IS REQUIRED TO BE
RETURNED, SUCH LENDER WILL RETURN TO THE SWING LINE LENDER ANY PORTION THEREOF
PREVIOUSLY DISTRIBUTED BY THE SWING LINE LENDER TO IT.
(F)
EACH LENDER'S OBLIGATION TO MAKE THE LOANS REFERRED TO IN
SUBSECTION 2.5(B) AND TO PURCHASE PARTICIPATING INTERESTS PURSUANT TO SUBSECTION
2.5(D) SHALL BE ABSOLUTE, IRREVOCABLE AND UNCONDITIONAL AND SHALL NOT BE
AFFECTED BY ANY CIRCUMSTANCE, INCLUDING, WITHOUT LIMITATION, (I) ANY SET-OFF,
COUNTERCLAIM, RECOUPMENT, DEFENSE OR OTHER RIGHT WHICH SUCH LENDER OR THE
BORROWER MAY HAVE AGAINST THE SWING LINE LENDER, THE BORROWER OR ANY OTHER
PERSON FOR ANY REASON WHATSOEVER, (II) THE OCCURRENCE OR CONTINUANCE OF A
DEFAULT OR AN EVENT OF DEFAULT; (III) ANY ADVERSE CHANGE IN THE CONDITION
(FINANCIAL OR OTHERWISE) OF THE BORROWER OR ANY OTHER LOAN PARTY; (IV) ANY
BREACH OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT BY THE BORROWER OR ANY OF
ITS SUBSIDIARIES OR ANY OTHER LENDER; OR (V) ANY OTHER CIRCUMSTANCE, HAPPENING
OR EVENT WHATSOEVER, WHETHER OR NOT SIMILAR TO ANY OF THE FOREGOING.
SECTION 3.
LETTERS OF CREDIT
3.1.
LETTERS OF CREDIT.
SUBJECT TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT, THE ISSUING LENDER AGREES, ON BEHALF OF THE LENDERS, AND IN RELIANCE
ON THE AGREEMENT OF THE LENDERS SET FORTH IN SUBSECTION 3.3, TO ISSUE FOR THE
ACCOUNT OF THE BORROWER LETTERS OF CREDIT IN AN AGGREGATE FACE AMOUNT, TOGETHER
WITH ANY UNPAID REIMBURSEMENT OBLIGATIONS, NOT TO EXCEED $25,000,000 AT ANY TIME
OUTSTANDING, AS FOLLOWS:
(I)
STANDBY LETTERS OF CREDIT (COLLECTIVELY, THE "STANDBY LETTERS OF
CREDIT") IN A FORM REASONABLY SATISFACTORY TO THE ISSUING LENDER AND IN FAVOR OF
SUCH BENEFICIARIES AS THE BORROWER