ARE ABSOLUTE AND UNCONDITIONAL AND SHALL NOT BE
AFFECTED BY ANY CIRCUMSTANCE WHATSOEVER, INCLUDING SETOFF, COUNTERCLAIM, THE
OCCURRENCE AND CONTINUANCE OF A DEFAULT OR AN EVENT OF DEFAULT OR ANY FAILURE BY
BORROWER TO SATISFY ANY OF THE CONDITIONS SET FORTH IN SECTION 7.2.
IF ANY
REVOLVING LENDER FAILS TO MAKE AVAILABLE TO THE L/C ISSUER THE AMOUNT OF SUCH
REVOLVING LENDER'S PRO RATA SHARE OF ANY PAYMENTS MADE BY THE L/C ISSUER IN
RESPECT OF A LETTER OF CREDIT AS PROVIDED IN THIS SECTION 1.1(D)(II), THE L/C
ISSUER SHALL BE ENTITLED TO RECOVER SUCH AMOUNT ON DEMAND FROM SUCH REVOLVING
LENDER TOGETHER WITH INTEREST AT THE INDEX RATE.
(III)
REQUEST FOR LETTERS OF CREDIT.
BORROWER SHALL GIVE AGENT AT
LEAST THREE (3) BUSINESS DAYS PRIOR WRITTEN NOTICE SPECIFYING THE DATE A LETTER
OF CREDIT IS REQUESTED TO BE ISSUED, THE AMOUNT AND THE NAME AND ADDRESS OF THE
BENEFICIARY AND A DESCRIPTION OF THE TRANSACTIONS PROPOSED TO BE SUPPORTED
THEREBY AND THE EXPIRY DATE (OR EXTENDED EXPIRY DATE) OF THE LETTER OF CREDIT.
EACH REQUEST BY BORROWER FOR THE ISSUANCE OF A LETTER OF CREDIT SHALL BE IN THE
FORM OF EXHIBIT 1.1(D).
IF AGENT INFORMS BORROWER THAT THE L/C ISSUER CANNOT
ISSUE THE REQUESTED LETTER OF CREDIT DIRECTLY, BORROWER MAY REQUEST THAT L/C
ISSUER ARRANGE FOR THE ISSUANCE OF THE REQUESTED LETTER OF CREDIT UNDER A RISK
PARTICIPATION AGREEMENT WITH ANOTHER FINANCIAL INSTITUTION REASONABLY ACCEPTABLE
TO AGENT, L/C ISSUER AND BORROWER.
THE ISSUANCE OF ANY LETTER OF CREDIT UNDER
THIS AGREEMENT SHALL BE SUBJECT TO SATISFACTION OF THE CONDITIONS SET FORTH IN
SECTION 7.2 AND THE CONDITIONS THAT THE LETTER OF CREDIT (I) SUPPORTS A
TRANSACTION ENTERED INTO IN THE ORDINARY COURSE OF BUSINESS OF BORROWER OR
ANOTHER TRANSACTION PERMITTED BY THE TERMS OF THIS AGREEMENT BENEFITING BORROWER
OR ANY OF ITS WHOLLY-OWNED SUBSIDIARIES AND (II) IS IN A FORM, IS FOR AN AMOUNT
AND CONTAINS SUCH TERMS AND CONDITIONS AS ARE REASONABLY SATISFACTORY TO THE L/C
ISSUER AND, IN THE CASE OF STANDBY LETTERS OF CREDIT, AGENT.
THE INITIAL NOTICE
REQUESTING THE ISSUANCE OF A LETTER OF CREDIT SHALL BE ACCOMPANIED BY THE FORM
OF THE LETTER OF CREDIT AND THE MASTER STANDBY AGREEMENT AND AN APPLICATION FOR
A LETTER OF CREDIT, IF ANY, THEN REQUIRED BY THE L/C ISSUER COMPLETED IN A
MANNER REASONABLY SATISFACTORY TO SUCH L/C ISSUER.
IF ANY PROVISION OF ANY
APPLICATION OR REIMBURSEMENT AGREEMENT IS INCONSISTENT WITH THE TERMS OF THIS
6
AGREEMENT, THEN THE PROVISIONS OF THIS AGREEMENT, TO THE EXTENT OF SUCH
INCONSISTENCY, SHALL CONTROL.
(IV)
EXPIRATION DATES OF LETTERS OF CREDIT.
THE EXPIRATION DATE OF
EACH LETTER OF CREDIT SHALL BE ON A DATE WHICH IS NOT LATER THAN THE EARLIER OF
(A) ONE YEAR FROM ITS DATE OF ISSUANCE OR (B) THE THIRTIETH (30TH) DAY PRIOR TO
THE DATE SET FORTH IN CLAUSE (A) OF THE DEFINITION OF THE TERM COMMITMENT
TERMINATION DATE. NOTWITHSTANDING THE FOREGOING, A LETTER OF CREDIT MAY PROVIDE
FOR AUTOMATIC EXTENSIONS OF ITS