Common use of AMOUNT AND TERMS OF LETTER OF CREDIT SUB-FACILITY Clause in Contracts

AMOUNT AND TERMS OF LETTER OF CREDIT SUB-FACILITY. 5.1. L/C Commitment. (a) Subject to the terms and conditions hereof, the Issuing Lender, in reliance on the agreements of the other Revolving Credit Lenders set forth in subsection 5.4(a), agrees to issue letters of credit ("Letters of Credit") for the account of the Borrower and its Subsidiaries on any Business Day during the Commitment Period in such form as may be approved from time to time by the Issuing Lender; provided that the Issuing Lender shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment, (ii) the Available Revolving Credit Commitment of any Revolving Credit Lender would be less than zero, (iii) the Aggregate Outstanding Extensions of Credit of all Revolving Credit Lenders would exceed the lesser of (A) the Aggregate Revolving Credit Commitment then in effect and (B) the Borrowing Base then in effect or (iv) the sum of (A) the Aggregate Outstanding Extensions of Credit of all the Revolving Credit Lenders and (B) the Canadian Subsidiary Equivalent Outstandings would exceed the Aggregate Revolving Credit Commitment. (b) Each Letter of Credit shall (i) be denominated in Dollars, (ii) be (x) a standby letter of credit issued to support obligations of the Borrower or any of its Subsidiaries, contingent or otherwise, or to finance the working capital and business needs of the Borrower or any of its Subsidiaries in the ordinary course of business or (y) a commercial letter of credit issued in respect of the purchase of goods or services by the Borrower or any of its Subsidiaries in the ordinary course of 32 27 business and (iii) expire no later than the earlier of (x) the date that is 12 months after the date of its issuance and (y) five Business Days prior to the Termination Date; provided that any Letter of Credit with an expiration date occurring up to twelve months after such Letter of Credit's date of issuance may be automatically renewable for subsequent 12-month periods (but in no event to a date which is later than five Business Days prior to the Termination Date). (c) Each Letter of Credit shall be subject to the Uniform Customs and, to the extent not inconsistent therewith, the laws of the State of New York. (d) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit hereunder if such issuance would conflict with, or cause the Issuing Lender or any L/C Participant to exceed any limits imposed by, any applicable Requirement of Law.

AMOUNT AND TERMS OF LETTER OF CREDIT SUB-FACILITY. 5.1. 4.1 L/C Commitment. (a) Subject to the terms and conditions hereof, the each Issuing LenderBank, in reliance on the agreements of the other Revolving Credit Lenders set forth in subsection 5.4(a4.4(a), severally agrees to issue letters of credit ("any Letters of Credit") Credit requested to be issued by it and so issued by it for the account of the Borrower and its Subsidiaries on any Business Day during the Revolving Credit Commitment Period in such form as may be approved from time to time by the such Issuing LenderBank; provided that the such Issuing Lender Bank shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance, such Issuing Bank has knowledge that (i) the L/C Obligations would exceed the L/C Commitment, or (ii) the Available Revolving Credit Commitment of any Revolving Credit Lender would be less than zero, (iii) the Aggregate Outstanding Extensions of Credit of all Revolving Credit Lenders would exceed the lesser of (A) the Aggregate Revolving Credit Commitment then in effect and (B) the Borrowing Base then in effect or (iv) the sum of (A) the Aggregate Outstanding Extensions of Credit of all the Revolving Credit Lenders and (B) the Canadian Subsidiary Equivalent Outstandings would exceed the Aggregate Revolving Credit Commitment. (b) Each Letter of Credit shall shall: (i) be denominated in Dollars, either (ii) be (x1) a standby letter of credit issued to support obligations of the Borrower or any of its Subsidiaries, contingent or otherwise, or to finance the working capital and business needs for which Revolving Credit Loans would be available (a "Standby Letter of the Borrower or any of its Subsidiaries in the ordinary course of business Credit"), or (y2) a commercial letter of credit issued in respect of the purchase of goods or services by the Borrower or any of its Subsidiaries in the ordinary course of 32 27 business for which Revolving Credit Loans would be available (a "Commercial Letter of Credit"); (ii) be (1) issued from an office of the Issuing Bank in the United States and (2) denominated in Dollars; and (iii) expire no later than the earlier of (x1) the date that is 12 months after one year following the date of its issuance thereof and (y2) five Business Days (5) days prior to the Termination Maturity Date; provided that any Letter of Credit with may provide for renewal thereof for additional one-year periods on an expiration date occurring up to twelve months after such Letter of Credit's date of issuance may be automatically renewable for subsequent 12-month periods "evergreen" basis (but not, in no event any event, beyond the date referred to a date which is later than five Business Days prior to the Termination Datein clause (2) above). (c) Each Letter of Credit shall be subject to the Uniform Customs and, to the extent not inconsistent therewith, the laws of the State of New YorkMaryland. (d) The No Issuing Lender Bank shall not at any time be obligated to issue any Letter of Credit hereunder if such issuance would conflict with, or cause the such Issuing Lender Bank or any L/C Participant to exceed any limits imposed by, any applicable Requirement of Law. (e) Notwithstanding the foregoing, in the event a Bank Default exists, the Issuing Bank shall not be required to issue any Letter of Credit unless the Issuing Bank has entered into arrangements satisfactory to it and the Borrower to eliminate the Issuing Bank's additional risk with respect to the participation in Letters of Credit of the Defaulting Lender or Defaulting Lenders, including by cash collateralizing such Defaulting Lender or Lender's Revolving Credit Commitment Percentage of the applicable outstanding L/C Obligations.

AMOUNT AND TERMS OF LETTER OF CREDIT SUB-FACILITY. 5.1. L/C Commitment5.1 Letters of Credit. (a) Subject GE Capital agrees, subject to the terms ----------------- and conditions hereofhereinafter set forth, to incur, from time to time on written request of the Company, Letter of Credit Obligations in respect of Letters of Credit and GE Guarantees; provided, however, that (i) the amount of all Letter ----------------- of Credit Obligations incurred by GE Capital at any one time outstanding (whether or not then due and payable) shall not exceed $5,000,000 in the aggregate and (ii) after giving effect to the incurrence of any Letter of Credit Obligations, the Issuing sum of the outstanding Reimbursement Obligations at such time and the then outstanding Revolving Credit Loans (without duplication of Reimbursement Obligations deemed to have become Loans) and Swingline Loans shall not exceed the Borrowing Base then in effect; and further provided, however, ------- -------- ------- that (i) no Letter of Credit or GE Guarantee shall have an expiration date which is more than one year following the date of issuance thereof and (ii) GE Capital shall be under no obligation to incur Letter of Credit Obligations in respect of any Letter of Credit or GE Guarantee having an expiration date which is later than the Revolving Credit Termination Date. The determination by GE Capital of the bank or other legally authorized Person (including GE Capital) which shall issue any letter of credit contemplated by this subsection 5.1 (a) shall be made by GE Capital, in its sole discretion. Upon the date of the issue of a Letter of Credit or GE Guarantee hereunder, GE Capital shall be deemed, without further action by any party hereto, to have sold to each Revolving Credit Lender, and each Revolving Credit Lender shall be deemed, without further action by any party hereto, to have irrevocably purchased from GE Capital, a participation in reliance such Letter of Credit or GE Guarantee and the related Letter of Credit Obligations and Reimbursement Obligations in an amount equal to such Lender's Revolving Credit Percentage thereof, and each Revolving Credit Lender (other than GE Capital) shall absolutely, unconditionally and irrevocably assume, as primary obligor and not as surety, and shall be unconditionally obligated to GE Capital to pay and discharge when due, such Revolving Credit Lender's participation interest in GE Capital's liability under such Letter of Credit Obligations, provided that no such Revolving Credit Lender shall be liable for -------- payment of any amount hereunder in respect of such Letter of Credit or GE Guarantee resulting from GE Capital's gross negligence or willful misconduct. (b) In the event that GE Capital or any Revolving Credit Lender shall make any payment on or pursuant to a Letter of Credit Obligation, the amount of such payment shall reduce the amount of the Letter of Credit Obligations outstanding immediately preceding such payment, but such payment thereupon shall be deemed to constitute a Revolving Credit Loan hereunder made to the Company on the agreements date of such payment (whether or not the conditions precedent to the making of a Revolving Credit Loan are satisfied) bearing interest at the rates set forth in subsection 6.3 payable in arrears on each Interest Payment Date. Without limiting the obligation of the Company to reimburse GE Capital and the other Revolving Credit Lenders set forth for such payment, each Revolving Credit Lender agrees that immediately following notice from GE Capital or any other Revolving Credit Lender that GE Capital or such other Revolving Credit Lender, as the case may be, has made any such payment, such Revolving Credit Lender shall pay to the Agent, for the account of GE Capital or such other Revolving Credit Lender, an amount equal to such Revolving Credit Lender's Revolving Credit Percentage of such payment. If such Revolving Credit Lender fails to make any such payment to the Agent in subsection 5.4(a)accordance with the preceding sentence, agrees such Revolving Credit Lender shall pay to issue letters the Agent interest in respect of credit such overdue amount for each day thereafter at the rate equal to the applicable Index Rate. ("Letters c) In the event that (i) any Revolving Credit Loan or Reimbursement Obligation, whether or not then due and payable, shall for any reason be outstanding on the Revolving Credit Termination Date (including, without limitation, any occurrence of Credit"the Revolving Credit Termination Date as a result of the occurrence of an Event of Default) or (ii) the Borrowing Base shall be reduced to an amount which is less than the amount of outstanding Reimbursement Obligations and outstanding Revolving Credit Loans (without duplication of Reimbursement Obligations deemed to have become Loans) and Swingline Loans after giving effect to such reduction, the Company will pay to the Agent, for the account of the Borrower Revolving Credit Lenders, cash or Cash Equivalents in an amount equal to the amount by which the sum of such Reimbursement Obligations and its Subsidiaries on any Business Day during such Loans exceeds the Commitment Period Borrowing Base. Such cash and Cash Equivalents shall be held by the Agent, for the account of the Revolving Credit Lenders, in a cash collateral account (the "Cash Collateral Account"). The Cash Collateral Account ----------------------- shall be maintained at a bank designated by the Agent in the name of the Agent (as a cash collateral account), and shall be under the sole dominion and control of Agent and subject to the terms of this subsection 5. 1. The Company hereby pledges, and grants to the Agent for the benefit of the Lenders a security interest in, all such form as may be approved cash and Cash Equivalents and other amounts held in the Cash Collateral Account from time to time by and all earnings thereof and proceeds thereon, as security for the Issuing Lender; provided payment of all Obligations. (d) From time to time after funds are deposited in the Cash Collateral Account, the Agent shall apply such funds or Cash Equivalents then held in the Cash Collateral Account and proceeds thereof and earnings thereon to the payment or cash collateralization of the Obligations. (e) Neither the Company nor any Person claiming on behalf of or through the Company shall have any right to withdraw any of the funds or Cash Equivalents held in the Cash Collateral Account, except that the Issuing Lender Agent shall have no obligation release from the Cash Collateral Account and return to issue the Company the amounts described below under the circumstances described below: (i) upon the termination of any Letter of Credit ifObligations in accordance with their terms and the payment of all amounts payable by the Company to the Revolving Credit Lenders and GE Capital in respect thereof, after giving effect any funds remaining in the Cash Collateral Account in excess of the then remaining Revolving Credit Loans and Reimbursement Obligations (without duplication of Reimbursement Obligations deemed to such issuance, (ihave become Loans) and Swingline Loans shall be returned to the L/C Obligations would exceed the L/C Commitment, Company; and (ii) in the Available Revolving Credit Commitment of any Revolving Credit Lender would be less than zero, (iii) the Aggregate Outstanding Extensions of Credit of all Revolving Credit Lenders would exceed the lesser of (A) the Aggregate Revolving Credit Commitment then in effect and (B) event that the Borrowing Base then in effect and the amounts then remaining in the Cash Collateral Account exceed the amount of Revolving Credit Loans, Swingline Loans and Reimbursement Obligations then outstanding (without duplication of Reimbursement Obligations deemed to have become Loans) for a period of five consecutive Business Days, such excess amount in the Cash Collateral Account shall be returned to the Company. (f) The Agent shall invest or cause to be invested the funds in the Cash Collateral Account in such Cash Equivalents as the Company may direct. Interest and earnings on the Cash Equivalents in the Cash Collateral Account shall be the property of the Company but shall be held in the Cash Collateral Account as Collateral (ivsubject to release by the Agent in accordance with subsection 5.1(e)). The Company agrees that it shall include such interest and earnings in income of the Company for U.S. income tax purposes. 5.2 Fees, Expenses and Indemnification in Respect of Letter of Credit ----------------------------------------------------------------- Obligations. (a) In the event that the Revolving Credit Lenders shall incur ----------- any Letter of Credit Obligations pursuant hereto at the request or on behalf of the Company hereunder, the Company agrees to pay to the Agent (i) all incidental fees and charges paid by GE Capital on account of the issuance or amendments of such Letter of Credit Obligations to the issuer, beneficiary or like party and (ii) with respect to issued but undrawn Letter of Credit Obligations only, computed for the period from and including the date such Letter of Credit Obligations are incurred to the date such Letter of Credit Obligations are no longer outstanding, a fee in an amount equal to the quotient of (A) an amount equal to (1) the sum of (A) the Aggregate Outstanding Extensions daily outstanding undrawn amount of such Letter of Credit Obligations for the period as to which payment of all the Revolving Credit Lenders and such fee is made multiplied by (2) a rate equal to 2%, divided by (B) 360. Fees payable in respect of Letter of Credit Obligations shall be payable to the Canadian Subsidiary Equivalent Outstandings would exceed Agent quarterly in arrears on each L/C Fee Payment Date and on the Aggregate date the relevant Letter of Credit Obligations expire or are cancelled. The Agent will pay to each Revolving Credit CommitmentLender, promptly after receiving any payment in respect of letter of credit fees referred to in this paragraph (a), such Revolving Credit Lender's ratable share of such fees, other than fees payable under clause (i) above which shall be payable to GE Capital. (b) Each Letter The Company hereby indemnifies and holds harmless each Revolving Credit Lender and the Agent (which for purposes of this subsection 5.2(b) shall include a reference to GE Capital acting in its individual capacity hereunder as issuer of Letters of Credit shall and GE Guarantees) from and against, and guarantees payment of and assumes as a primary obligor, any and all claims and damages, losses, liabilities, costs or expenses which such Revolving Credit Lender or the Agent may incur (ior which may be claimed against such Lender or the Agent by any Person whatsoever) be denominated by reason of or in Dollars, (ii) be (x) a standby letter connection with the execution and delivery or transfer of credit issued or payment or failure to support obligations of the Borrower or any of its Subsidiaries, contingent or otherwise, or to finance the working capital and business needs of the Borrower or any of its Subsidiaries in the ordinary course of business or (y) a commercial letter of credit issued in respect of the purchase of goods or services by the Borrower or any of its Subsidiaries in the ordinary course of 32 27 business and (iii) expire no later than the earlier of (x) the date that is 12 months after the date of its issuance and (y) five Business Days prior to the Termination Date; provided that pay under any Letter of Credit or GE Guarantee, including, without limitation, any claims, damages, losses, liabilities, costs or expenses which GE Capital or any other Revolving Credit Lender may incur by reason of or in connection with an expiration date occurring up the failure of any Revolving Credit Lender to twelve months after fulfill or comply with its obligations to GE Capital or such Letter of Credit's date of issuance may be automatically renewable for subsequent 12-month periods Revolving Credit Lender hereunder (but in no event nothing herein contained shall affect any rights which the Company may have against such defaulting Lender); provided that -------- the Company shall not be required to a date which is later than five Business Days prior indemnify any Revolving Credit Lender or the Agent for any claims, damages, losses, liabilities, costs or expenses to the Termination Date). (c) Each Letter of Credit shall be subject extent, but only to the Uniform Customs andextent, to caused by the extent not inconsistent therewith, willful misconduct or gross negligence of such Lender or the laws of the State of New York. (d) The Issuing Lender shall not at any time be obligated to issue Agent in determining whether a request presented under any Letter of Credit hereunder if or a demand for payment under a GE Guarantee complied with the terms of such issuance would conflict with, Letter of Credit or cause GE Guarantee after the Issuing Lender presentation to it of a request strictly complying with the terms and conditions of the Letter of Credit or GE Guarantee. Nothing in this subsection 5.2(b) is intended to limit the obligations of the Company under any L/C Participant to exceed any limits imposed by, any applicable Requirement other provision of Lawthis Agreement.

AMOUNT AND TERMS OF LETTER OF CREDIT SUB-FACILITY. 5.1. 3.1 L/C CommitmentCOMMITMENT. (a) Subject to the terms and conditions hereof, the each Issuing Lender, in reliance on the agreements of the other Revolving Credit Lenders set forth in subsection 5.4(a3.4(a), agrees to issue letters of credit ("Letters of CreditLETTERS OF CREDIT") for the account of the any Borrower and its Subsidiaries on any Business Day during the Commitment Period in such form as may be approved from time to time by the such Issuing Lender; provided PROVIDED that the such Issuing Lender shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment, (ii) the Available Revolving Credit Commitment of any Revolving Credit Lender would be less than zero, zero or (iii) the Aggregate Outstanding Extensions of Credit of all Revolving Credit Lenders would exceed the lesser of (A) the Aggregate Revolving Credit Commitment then in effect and (B) the Borrowing Base then in effect or (iv) the sum of (A) the Aggregate Outstanding Extensions of Credit of all the Revolving Credit Lenders and (B) the Canadian Subsidiary Equivalent Outstandings would exceed the Aggregate Revolving Credit Commitmenteffect. (b) Each Letter of Credit shall (i) be denominated in DollarsDollars or an Optional Currency, (ii) be (x) a standby letter of credit (a "STANDBY LETTER OF CREDIT") issued to support obligations of the Borrower Company or any of its Subsidiaries, contingent or otherwise, or to finance the working capital and business needs of the Borrower Company or any of its Subsidiaries in the ordinary course of business (including, without limitation, to secure or support lines of credit obtained by Foreign Subsidiaries in accordance with the terms hereof) or (y) a commercial letter of credit (a "COMMERCIAL LETTER OF CREDIT") issued in respect of the purchase of goods or services by the Borrower or any of Company and its Subsidiaries in the ordinary course of 32 27 business and (iii) expire no later than the earlier of (x) the date that is 12 months after the date of its issuance and (y) five Business Days prior to the Termination Date; provided PROVIDED that any Letter of Credit with an expiration date occurring up to twelve months after such Letter of Credit's date of issuance may be automatically renewable for subsequent 12-month periods (but in no event to a date which is later than five Business Days prior to the Termination Date)) unless the Issuing Lender with respect to such Letter of Credit shall have given 60 days' prior written notice to the relevant Borrower and the beneficiary of such Letter of Credit that it will not be renewed. Notwithstanding the foregoing, at the request of any Borrower and with the consent of the Administrative Agent, any Letter of Credit issued for the account of such Borrower may have an expiration date which is later than the date set forth in clause (iii)(x) and (y) above, PROVIDED that such Borrower agrees that, from and after the Termination Date, it shall provide to the Administrative Agent, as collateral security for the L/C Obligations on account of such Letter of Credit, an amount of cash which is equal to at least 105% of the face amount thereof. (c) Each Letter of Credit shall be subject to the Uniform Customs and, to the extent not inconsistent therewith, the laws of the State of New York. (d) The No Issuing Lender shall not at any time be obligated to issue any Letter of Credit hereunder if (i) such issuance would conflict with, or cause the such Issuing Lender or any L/C Participant to exceed any limits imposed by, any applicable Requirement of LawLaw or (ii) in the case of any requested Letter of Credit to be denominated in an Optional Currency, such Issuing Lender is not reasonably satisfied that deposits in the relevant Optional Currency will be freely available to it for the relevant period of time.