SUCH LETTER OF CREDIT EQUAL TO SUCH REVOLVING
LENDER'S APPLICABLE PERCENTAGE OF THE AGGREGATE AMOUNT AVAILABLE TO BE DRAWN
UNDER SUCH LETTER OF CREDIT.
IN CONSIDERATION AND IN FURTHERANCE OF THE
FOREGOING, EACH SUCH REVOLVING LENDER HEREBY ABSOLUTELY AND UNCONDITIONALLY
AGREES TO PAY TO THE ADMINISTRATIVE AGENT, FOR THE ACCOUNT OF THE APPLICABLE
ISSUING BANK, SUCH REVOLVING LENDER'S APPLICABLE PERCENTAGE OF EACH LC
DISBURSEMENT MADE BY SUCH ISSUING BANK AND NOT REIMBURSED BY THE BORROWER ON THE
DATE DUE AS PROVIDED IN PARAGRAPH (E) OF THIS SECTION, OR OF ANY REIMBURSEMENT
PAYMENT REQUIRED TO BE REFUNDED TO THE BORROWER FOR ANY REASON.
EACH SUCH
REVOLVING LENDER ACKNOWLEDGES AND AGREES THAT ITS OBLIGATION TO ACQUIRE
PARTICIPATIONS PURSUANT TO THIS PARAGRAPH IN RESPECT OF LETTERS OF CREDIT IS
ABSOLUTE AND UNCONDITIONAL AND SHALL NOT BE AFFECTED BY ANY CIRCUMSTANCE
WHATSOEVER, INCLUDING ANY AMENDMENT, RENEWAL OR EXTENSION OF ANY LETTER OF
CREDIT OR THE OCCURRENCE AND CONTINUANCE OF A DEFAULT OR REDUCTION OR
TERMINATION OF THE REVOLVING COMMITMENTS, AND THAT EACH SUCH PAYMENT SHALL BE
MADE WITHOUT ANY OFFSET, ABATEMENT, WITHHOLDING OR REDUCTION WHATSOEVER;
PROVIDED, HOWEVER, THAT NO REVOLVING LENDER SHALL BE OBLIGATED TO MAKE ANY
PAYMENT TO THE ADMINISTRATIVE AGENT FOR ANY WRONGFUL LC DISBURSEMENT MADE BY AN
ISSUING BANK AS A RESULT OF ACTS OR OMISSIONS CONSTITUTING WILLFUL MISCONDUCT OR
GROSS NEGLIGENCE ON THE PART OF SUCH ISSUING BANK.
(E)
REIMBURSEMENT.
IF ANY ISSUING BANK SHALL
MAKE ANY LC DISBURSEMENT IN RESPECT OF A LETTER OF CREDIT, THEN SUCH ISSUING
BANK SHALL NOTIFY THE BORROWER TO REIMBURSE THE ISSUING BANK THEREFOR, IN WHICH
CASE THE BORROWER SHALL REIMBURSE SUCH LC DISBURSEMENT BY PAYING TO THE
ADMINISTRATIVE AGENT AN AMOUNT EQUAL TO SUCH LC DISBURSEMENT AND ANY ACCRUED
INTEREST THEREON NOT LATER THAN 1:00 P.M., NEW YORK CITY TIME, ON THE DATE THAT
SUCH LC DISBURSEMENT IS MADE, IF THE BORROWER SHALL HAVE RECEIVED NOTICE OF SUCH
LC DISBURSEMENT PRIOR TO 12:00 NOON, NEW YORK CITY TIME, ON SUCH DATE, OR IF
SUCH NOTICE HAS NOT BEEN RECEIVED BY THE BORROWER PRIOR TO SUCH TIME ON SUCH
DATE, THEN NOT LATER THAN 1:00 P.M., NEW YORK CITY TIME, ON (A) THE BUSINESS DAY
THAT THE BORROWER RECEIVES SUCH NOTICE, IF SUCH NOTICE IS RECEIVED PRIOR TO
12:00 NOON, NEW YORK CITY TIME, ON THE DAY OF RECEIPT OR (B) THE BUSINESS DAY
IMMEDIATELY FOLLOWING THE DAY THAT THE BORROWER RECEIVES SUCH NOTICE, IF SUCH
NOTICE IS NOT RECEIVED PRIOR
43
TO SUCH TIME ON THE DAY OF RECEIPT, PROVIDED THAT, IF THE LC DISBURSEMENT IS
EQUAL TO OR GREATER THAN $1,000,000, THE BORROWER MAY, SUBJECT TO THE CONDITIONS
OF BORROWING SET FORTH HEREIN, REQUEST IN ACCORDANCE WITH SECTION 2.3 THAT SUCH
PAYMENT BE FINANCED WITH AN ABR REVOLVING BORROWING OR SWINGLINE LOAN IN AN
EQUIVALENT AMOUNT AND, TO THE EXTENT SO FINANCED, THE BORROWER'S OBLIGATION TO
MAKE SUCH PAYMENT SHALL BE DISCHARGED AND REPLACED BY THE RESULTING ABR
REVOLVING BORROWING OR SWINGLINE LOAN.
IF THE BORROWER FAILS TO MAKE SUCH
PAYMENT