their sole discretion to protect them
against the risk of non-payment by such Defaulting Lender or Potential
Defaulting Lender.
(iii)
In furtherance of the foregoing, if any
Lender becomes, and during the period it remains, a Defaulting Lender or a
Potential Defaulting Lender, each Issuing Bank is hereby authorized by the
Borrower (which authorization is irrevocable and coupled with an interest) to
give, in its discretion, through the Administrative Agent, Notices of Borrowing
pursuant to
65
Section 2.02 in such amounts and in such times as may be required to
(A) reimburse an outstanding Rollup Unreimbursed Amount and/or (B) Cash
Collateralize the Obligations of the Borrower in respect of outstanding Rollup
Letters of Credit in an amount equal to 105% of the aggregate amount of the
Obligations (contingent or otherwise) of such Defaulting Lender or Potential
Defaulting Lender in respect of such Rollup Letters of Credit.
(H)
APPLICABILITY OF ISP AND UCP.
UNLESS
OTHERWISE EXPRESSLY AGREED BY THE APPLICABLE ISSUING BANK AND THE BORROWER WHEN
A ROLLUP LETTER OF CREDIT IS ISSUED, (I) THE RULES OF THE ISP SHALL APPLY TO
EACH STANDBY ROLLUP LETTER OF CREDIT, AND (II) THE RULES OF THE UNIFORM CUSTOMS
AND PRACTICE FOR DOCUMENTARY CREDITS, AS MOST RECENTLY PUBLISHED BY THE
INTERNATIONAL CHAMBER OF COMMERCE AT THE TIME OF ISSUANCE SHALL APPLY TO EACH
COMMERCIAL ROLLUP LETTER OF CREDIT.
(I)
CONFLICT WITH LETTER OF CREDIT
APPLICATION.
IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS HEREOF AND THE
TERMS OF ANY LETTER OF CREDIT APPLICATION, THE TERMS HEREOF SHALL CONTROL.
ARTICLE III
CONDITIONS TO EFFECTIVENESS
Section 3.01
Conditions Precedent to Effectiveness.
The effectiveness of this
Credit Agreement, the obligation of each Term Lender to make a Term Advance
pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup
Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the
obligation of the Initial Issuing Bank to issue the initial Letter of Credit
are, in each case, subject to the satisfaction of the following conditions
precedent:
(A)
THE ADMINISTRATIVE AGENT SHALL HAVE
RECEIVED ON OR BEFORE THE EFFECTIVE DATE THE FOLLOWING, EACH DATED SUCH DAY
(UNLESS OTHERWISE SPECIFIED), IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO
THE INITIAL LENDERS (UNLESS OTHERWISE SPECIFIED) AND (EXCEPT FOR THE NOTES) IN
SUFFICIENT COPIES FOR EACH INITIAL LENDER:
(I)
THE NOTES PAYABLE TO THE ORDER OF THE
NON-ROLLUP REVOLVING CREDIT LENDERS TO THE EXTENT REQUESTED IN ACCORDANCE WITH
SECTION 2.16(A).
(II)
CERTIFIED COPIES OF THE RESOLUTIONS OF THE
BOARDS OF DIRECTORS OF EACH OF THE BORROWER AND EACH GUARANTOR APPROVING THE
EXECUTION AND DELIVERY OF THIS AGREEMENT.
(III)
A COPY OF THE CHARTER OR OTHER CONSTITUTIVE
DOCUMENT OF EACH GUARANTOR AND EACH AMENDMENT THERETO, CERTIFIED (AS OF A DATE
REASONABLY NEAR THE EFFECTIVE DATE), IF APPLICABLE, BY THE SECRETARY OF STATE OF
THE JURISDICTION OF ITS INCORPORATION OR ORGANIZATION, AS THE CASE MAY BE,
THEREOF AS BEING A TRUE AND CORRECT COPY THEREOF.
(IV)
A CERTIFICATE OF EACH OF THE BORROWER AND EACH
GUARANTOR SIGNED ON BEHALF OF THE BORROWER