AGREEMENT
FOR LETTER OF CREDIT
dated as of
April 26, 2007
Unless
otherwise defined in this Agreement, capitalized terms used in this
Agreement shall have the meanings set forth in
Section 26.
Citibank, N.A.
(“ Citibank ”) agrees to issue at the request
and for the account of the undersigned (the “
Applicant ”) one or more irrevocable letters of
credit, each in a form satisfactory to the Applicant and Citibank
(each a “ Credit ”, and collectively, the
“ Credits ”), up to an aggregate maximum amount
not to exceed the amount of the Security Letter of Credit,
substantially in accordance with the terms and conditions hereof.
In consideration of your issuing, from time to time, one or more
Credits substantially in accordance with the terms and conditions
provided by the Applicant, Applicant unconditionally agrees with
Citibank as follows:
1.
Condition to Issuance of any Credit. The obligation of
Citibank to issue a Credit hereunder, on any Business Day, is
subject to (a) the Security Letter of Credit having an
available amount not less than the sum of (i) the aggregate
amount of the Credits outstanding on such date, plus (ii) the
aggregate amount of Drafts, if any, not reimbursed by or on behalf
of Applicant on such date, plus (iii) the amount of the Credit
that Applicant has requested Citibank to issue on such date,
(b) any such Credit having a maturity date that is no later
than five Business Days prior to the expiration date of the
Security Letter of Credit and (c) Citibank having received at least
one Business Day’s prior written notice at its office
specified below requesting such Credit in the form attached as
Annex I.
2.
Reimbursement. Applicant will pay Citibank the amount of
each draft or other request for payment (each, a “
Draft ”) drawn under any Credit, whether drawn before,
on or, if in accordance with applicable law, after the expiry date
stated in any such Credit. Each such payment shall be made,
following payment by Citibank, on demand.
3.
Commissions, Fees, Charges and Expenses. Applicant will pay
Citibank within ten Business Days of demand therefor, all expenses,
charges and other amounts which Citibank may actually pay or
actually incur in connection with the Credits, it being agreed that
Applicant is not obligated to pay to Citibank any commitment
commission, facility fee or letter of credit fee in respect of the
Credits.
4.
Payments; Interest on Past Due Amounts; Computations. All
amounts due from Applicant shall be paid to Citibank at 399 Park
Avenue, New York, New York 10043 (or such other address notified to
Applicant in writing), with-out defense, set-off, cross-claim, or
counterclaim of any kind, in U.S. dollars and in same day funds,
provided, however, that if any such amount is denominated in a
currency other than U.S. Dollars, Applicant will pay the equivalent
of such amount in U.S. Dollars computed at Citibank’s selling
rate for cable transfers to the place where and in the currency in
which such amount is payable, or such other currency, place, form
and manner acceptable to Citibank in its sole discretion. Any
amount not paid when due shall bear interest until paid in full at
a daily fluctuating interest rate per annum equal to two percent
per annum above the rate of interest announced publicly from time
to time by Citibank in New York as Citibank’s Base Rate.
Applicant authorizes Citibank to charge any account of Applicant
for any amount when due. Unless otherwise agreed in writing as to
any Credit, all computations of commissions, fees and interest
shall be based on a 360-day year and actual days
elapsed.
5.
Additional Costs. (a) If any Change in Law
shall:
(i) impose, modify or deem applicable any
reserve, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by,
Citibank; or
(ii) impose on Citibank any other condition
affecting this Agreement or the Credits;
and the result
of any of the foregoing shall be to increase the cost to Citibank
in an amount Citibank deems material of issuing or maintaining the
Credits or reduce the amount of any sum received or receivable by
Citibank hereunder (whether of principal, interest or
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otherwise),
other than any increase in costs resulting from (i) Excluded
Taxes or (ii) Indemnified Taxes or Other Taxes to which
Section 6 is applicable, then Applicant will pay to Citibank
in accordance with Section 4 such additional amount or amounts
as will compensate Citibank for such additional costs incurred or
reduction suffered.
(b) If
Citibank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of
return on Citibank’s capital or on the capital of
Citibank’s holding company, if any, as a consequence of this
Agreement or the Credits to a level below that which Citibank or
Citibank’s holding company could have achieved but for such
Change in Law (taking into consideration Citibank’s policies
and the policies of Citibank’s holding company with respect
to capital adequacy), then from time to time Applicant will pay to
Citibank in accordance with Section 4 such additional amount
or amounts as will compensate Citibank or Citibank’s holding
company for any such reduction suffered.
(c) A
certificate of Citibank setting forth the amount or amounts
necessary to compensate Citibank or its holding company, as the
case may be, as specified in subsection (a) or (b) of
this Section, and explaining in reasonable detail the method by
which such amount or amounts shall have been determined, shall be
delivered to Applicant and shall be conclusive absent manifest
error; provided that Citibank shall not be required to
deliver information pursuant to this Section relating to its
business, other than any such information that is available to the
Applicant on a nonconfidential basis prior to the date of such
certificate. Applicant shall pay to Citibank the amount shown as
due on any such certificate within 10 days after receipt
thereof.
(d) Failure or delay on the part of
Citibank to demand compensation pursuant to this Section shall not
constitute a waiver of Citibank’s right to demand such
compensation; provided that Applicant shall not be required
to compensate Citibank pursuant to this Section for any increased
costs or reductions incurred more than 180 days prior to the
date that Citibank notifies Applicant of the Change in Law giving
rise to such increased costs or reductions and of Citibank’s
intention to claim compensation therefor.
6.
Taxes. Any and all payments by or on account of any
obligation of Applicant hereunder shall be made free and clear of
and without deduction for any Indemnified Taxes or Other Taxes;
provided that if Applicant shall be required by applicable
law to deduct any Indemnified Taxes or Other Taxes from such
payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this
Section) Citibank receives an amount equal to the sum it would have
received had no such deductions been made, (ii) Applicant
shall make such deductions and (iii) Applicant shall pay the
full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In
addition, Applicant shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable
law.
(c) Applicant shall indemnify Citibank,
within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by
Citibank on or with respect to any payment or an account of any
Obligation of the Applicant hereunder and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly
or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or
liability delivered to Applicant by Citibank shall be conclusive
absent manifest error. Notwithstanding the foregoing, the Applicant
shall have no obligation to indemnify Citibank for any interest,
penalties or expenses described above and arising from the gross
negligence or willful misconduct of Citibank in taking any action
it was required to take including, but not limited to, filing any
tax return or report in a timely manner.
(d) As
soon as practicable after any payment of Indemnified Taxes or Other
Taxes by Applicant to a Governmental Authority,
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Applicant shall
deliver to Citibank the original or a certified copy of a receipt
issued by such Governmental Authority evidencing such payment, a
copy of the return reporting such payment or other evidence of such
payment reasonably satisfactory to Citibank.
(e) Any
foreign assignee that is entitled to an exemption from or reduction
of withholding tax under the law of the jurisdiction in which
Applicant is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall, upon
request of Applicant, deliver to Applicant, at the time or times
prescribed by applicable law or reasonably requested by Applicant,
such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without
withholding or at a reduced rate.
(f) If
Citibank determines that it has received a refund of any Taxes or
Other Taxes as to which it has been indemnified by the Applicant or
with respect to which the Applicant has paid additional amounts
pursuant to this Section 6, it shall pay over such refund to
the Applicant (but only to the extent of indemnity payments made,
or additional amounts paid, by the Applicant under this
Section 6 with respect to the Taxes or Other Taxes giving rise
to such refund), net of all out-of-pocket expenses of Citibank and
without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided, that
the Applicant, upon the request of Citibank, agrees to repay the
amount paid over to the Applicant (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to
Citibank in the event Citibank is required to repay such refund to
such Governmental Authority. This Section shall not be construed to
require Citibank to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to
the Applicant or any other Person.
7.
Indemnification. (a) Applicant agrees to pay
(i) all reasonable out-of-pocket expenses incurred by the
Citibank and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for Citibank, in connection with the
preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not
the transactions contemplated hereby or thereby shall be
consummated) and (ii) all reasonable out-of-pocket expenses
incurred by Citibank, including the reasonable fees, charges and
disbursements of any counsel for Citibank, in connection with the
enforcement or protection of its rights in connection with this
Agreement, including its rights under this Section, or in
connection with the Credits, including in connection with any
workout, restructuring or negotiations in respect
thereof.
(b) Applicant agrees to indemnify Citibank,
and each Related Party of any of the foregoing Persons (each such
Person being called an “ Indemnitee ”)
against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses,
including the reasonable fees, charges and disbursements of any
counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of
(i) the execution or delivery of this Agreement or any
agreement or instrument contemplated hereby, the performance by the
parties hereto of their respective obligations hereunder or the
consummation of the transactions contemplated hereby, (ii) any
Credit or the use of the proceeds thereof (including any refusal by
Citibank to honor a demand for payment under any Credit if the
documents presented in connection with such demand do not strictly
comply with the terms of such Credit), (iii) any actual or
alleged presence or release of Hazardous Materials on or from any
property owned or operated by Applicant or any of its Subsidiaries,
or any Environmental Liability related in any way to Applicant or
any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory
and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court
of competent jurisdiction by final and nonappealable judgment to
have resulted from the gross negligence or willful misconduct of
such Indemnitee or its Affiliates or from a breach of this
Agreement by such Indemnitee.
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(c) To the
extent permitted by applicable law, each party hereto shall not
assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement
or instrument contemplated hereby, any Credit or the use of the
proceeds thereof.
(d) All
amounts due under this Section shall be payable promptly after
written demand therefor accompanied by the appropriate invoice or
other detail supporting such amount.
8.
Obligations Absolute: Limitations of Liability.
(a) Applicant’s obligation to repay the Drafts and to
make the other payments provided herein (the “
Obligations ”) shall be absolute, unconditional
and irrevocable, and shall be performed strictly in accordance with
the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or
enforceability of the Credits or this Agreement, or any term or
provision therein, (ii) the existence of any claim, set-off,
defense or other right that Applicant, or any Affiliate of
Applicant may have at any time against the beneficiary or any
transferee of the Credits (or any Persons or entities for whom such
beneficiary or transferee may be acting), Citibank or any other
Person, whether in connection with this Agreement, the transactions
contemplated herein or any unrelated transaction;
(iii) without limiting Section 8(b) below, any Draft, demand
certificate or any other document presented under the Credits
proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect,
(iv) without limiting Section 8(b) below, payment by Citibank
under the Credits against presentation of a Draft or other document
that does not comply with the terms of the Credits, (v) the
surrender or impairment of any security for the performance or
observance of any of the terms of this Agreement or any Credit;
(vi) any non-application or misapplication by the beneficiary
the Credits of the proceeds of any drawing under the Credits;
(vii) the fact that a Default shall have occurred and be
continuing; or (viii) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal
or equitable discharge of, or provide a right of setoff against,
Applicant’s obligations hereunder.
(b) Neither Citibank nor any of its Related
Parties shall have any liability or responsibility by reason of or
in connection with the issuance or transfer of the Credits or any
payment or failure to make any payment thereunder (irrespective of
any of the circumstances referred to in the preceding subsection
(a)), or any error, omission, interruption, loss or delay in
transmission or delivery of any Draft, notice or other
communication under or relating to the Credits (including any
document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from
causes beyond the control of Citibank; provided that the
foregoing shall not be construed to excuse Citibank from liability
to Applicant to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived
by Applicant to the extent permitted by applicable law) suffered by
Applicant that are caused by Citibank’s failure to exercise
care when determining whether Drafts and other documents presented
under the Credits comply with the terms thereof. The parties hereto
expressly agree that, in the absence of gross negligence or willful
misconduct on the part of Citibank (as finally determined by a
court of competent jurisdiction), Citibank shall be deemed to have
exercised care in each such determination. In furtherance of the
foregoing and without limiting the generality thereof, the parties
agree that, with respect to documents presented that appear on
their face to be in substantial compliance with the terms of the
Credits, Citibank may, in its sole discretion, either accept and
make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the
contrary (other than a valid injunction issued by a court of
competent jurisdiction), or refuse to accept and make payment upon
such documents if such documents are not in strict compliance with
the terms of the Credits.
9.
Independence. Applicant acknowledges that the rights and
obligations of Citibank under the Credits are independent of the
existence, performance or nonperformance of any contract
Page 4
or arrangement
underlying the Credits, including contracts or arrangements between
Citibank and Applicant and between Applicant and the beneficiary of
any Credit. Citibank shall have no duty to notify Applicant of its
receipt of a Draft, certificate or other document presented under
any Credit or of its decision to honor any such Credit. Citibank
may, without incurring any liability to Applicant or impairing its
entitlement to reimbursement under this Agreement, honor any Credit
despite notice from Applicant of, and without any duty to inquire
into, any defense to payment or any adverse claims or other rights
against the beneficiary of any Credit or any other Person. Citibank
shall have no duty to request or require the presentation of any
document, including any default certificate, not required to be
presented under the terms and conditions of any Credit. Citibank
shall have no duty to seek any waiver of discrepancies from
Applicant, nor any duty to grant any waiver of discrepancies which
Applicant approves or requests. Citibank shall have no duty to
extend the expiration date or term of any Credit or to issue a
replacement letter of credit on or before the expiration date of
any Credit or the end of such term.
10.
Non-Documentary Conditions. Citibank is authorized (but
shall not be required) to disregard any non-documentary conditions
stated in any Credit.
11.
Transfers. If, at Applicant’s request, any Credit is
issued in transferable form, Citibank shall have no duty to
determine the proper identity of anyone appearing in any transfer
request, Draft, or other document as transferee, nor shall Citibank
be responsible for the validity or correctness of any
transfer.
12.
Extensions and Modifications of the Credit. This Agreement
shall be binding upon Applicant with respect to any extension or
modification of any Credit made at Applicant’s request or
with Applicant’s consent. Applicant’s Obligations shall
not be reduced or impaired in any way by any agreement by Citibank
and the beneficiary of any Credit extending Citibank’s time
to honor or to give notice of discrepancies and any such agreement
shall be binding upon Applicant.
13.
Covenants of Applicant. Applicant will, so long as any
Credit or any reimbursement or other payment obligation of
Applicant under this Agreement remains outstanding, comply with the
covenants set forth below:
(a) Applicant will furnish to Citibank
(i) within 90 days after the end of each fiscal year of
Applicant, its audited consolidated balance sheet and related
statements of operations, stockholders’ equity and cash flows
as of the end of and for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all
reported on by independent public accountants of recognized
national standing (without a “going concern” or like
qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such
consolidated financial statements present fairly in all material
respects the consolidated financial condition and results of
operations of Applicant and the Subsidiaries on a consolidated
basis in accordance with GAAP; (ii) within 45 days after
the end of each of the first three fiscal quarters of each fiscal
year of Applicant, its consolidated balance sheet and related
statements of operations and cash flows as of the end of and for
such fiscal quarter and the then elapsed portion of the fiscal
year, setting forth in each case in comparative form the figures
for the corresponding period or periods of (or, in the case of the
balance sheet, as of the end of) the previous fiscal year, all
certified by one of its Financial Officers as presenting fairly in
all material respects the financial condition and results of
operations of Applicant and the Subsidiaries on a consolidated
basis in accordance with GAAP, subject to normal year-end audit
adjustments and the absence of footnotes; (iii) concurrently with
any delivery of financial statements under clause (i) or
(ii) above, a certificate of a Financial Officer of Applicant
certifying as to whether a Default has occurred and, if a Default
has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto; (iv) promptly
after the same become publicly available, copies of all reports on
Forms 10-K, 10-Q and 8-K (or any substitute or successor forms)
filed by Applicant with the Securities and Exchange Commission, or
any Governmental Authority succeeding to any or all of the
functions of said Commission, or distributed by Applicant to its
shareholders generally, as the case may be; (v) promptly
following a request therefor, all documentation and other
information that Citibank reasonably
Page 5
requests as
necessary in order for it to comply with its ongoing obligations
under applicable “know your customer” and anti-money
laundering rules and regulations, including the USA Patriot Act;
and (vi) promptly following any request therefor, such other
information regarding the operations, business affairs and
financial condition of Applicant or any Material Subsidiary, or
compliance with the terms of this Agreement, as Citibank may
reasonably request. Information required to be delivered pursuant
to this Section shall be deemed to have been delivered if such
information, or one or more annual or quarterly reports containing
such information, shall be available on the website of the
Securities and Exchange Commission at http://www.sec.gov and a
confirming electronic correspondence shall have been delivered or
caused to be delivered to Citibank providing notice of such posting
or availability; provided that Applicant shall deliver paper
copies of such information to Citibank if Citibank requests such
delivery. Information required to be delivered pursuant to this
Section may also be delivered by electronic communications pursuant
to procedures approved by the Citibank.
(b) Applicant will furnish to Citibank
prompt written notice of the occurrence of any Default promptly
after any Financial Officer becomes aware thereof. Each notice
delivered under this subsection (b) shall be accompanied by a
statement of a Financial Officer or other executive officer of
Applicant setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken
with respect thereto.
(c) Applicant will, and will cause each of
the Material Subsidiaries to, (i) keep and maintain all
property material to the conduct of its business in good working
order and condition, ordinary wear and tear excepted, except where
the failure to do so could not reasonably be expected to have a
Material Adverse Effect, and (ii) maintain, with financially
sound and reputable insurance companies, insurance or maintain a
self-insurance program in such amounts and against such risks as
are customarily maintained by companies of similar size and
financial strength engaged in the same or similar businesses
operating in the same or similar locations (including without
limitation by the maintenance of adequate self-insurance reserves
to the extent customary among such companies).
(d) Applicant will, and will cause each of
the Material Subsidiaries to, keep proper books of record and
account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and
activities. Applicant will, and will cause each of the Material
Subsidiaries to, permit any representatives designated by Citibank,
at its own expense if an Event of Default has not occurred and is
continuing, upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with
its officers, all at such reasonable times and as often as
reasonably requested.
(e) Applicant will, and will cause each of
the Material Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to
it or its property, except where the failure to do so, individually
and in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
(f) Applicant will observe or perform each
coven
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