THE BORROWER'S OBLIGATIONS TO REIMBURSE THE ISSUING BANK WITH
RESPECT TO UNPAID DRAWINGS (INCLUDING, IN EACH CASE, INTEREST THEREON) SHALL BE
THE PRIMARY OBLIGATION OF THE BORROWER, ABSOLUTE AND UNCONDITIONAL UNDER ANY AND
ALL CIRCUMSTANCES AND IRRESPECTIVE OF ANY
21
SETOFF, COUNTERCLAIM OR DEFENSE TO PAYMENT WHICH THE BORROWER MAY HAVE OR HAVE
HAD AGAINST ANY LENDER, THE ISSUING BANK, THE ADMINISTRATIVE AGENT OR ANY
BENEFICIARY OF THE LETTER OF CREDIT, INCLUDING, WITHOUT LIMITATION, ANY DEFENSE
BASED UPON THE FAILURE OF ANY DRAWING UNDER A LETTER OF CREDIT TO CONFORM TO THE
TERMS OF THE LETTER OF CREDIT OR ANY NON-APPLICATION OR MISAPPLICATION BY THE
BENEFICIARY OF THE PROCEEDS OF SUCH DRAWING; PROVIDED, HOWEVER, THAT THE
BORROWER SHALL NOT BE OBLIGATED TO REIMBURSE THE ISSUING BANK FOR ANY WRONGFUL
PAYMENT MADE BY THE ISSUING BANK UNDER A LETTER OF CREDIT AS A RESULT OF ACTS OR
OMISSIONS CONSTITUTING WILLFUL MISCONDUCT OR GROSS NEGLIGENCE ON THE PART OF THE
ISSUING BANK (AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND
NON-APPEALABLE DECISION).
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH
HEREIN, ANY ACTION TAKEN OR OMITTED TO BE TAKEN BY THE ISSUING BANK UNDER OR IN
CONNECTION WITH THE LETTER OF CREDIT, IF TAKEN OR OMITTED IN THE ABSENCE OF THE
ISSUING BANK'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (AS DETERMINED BY A COURT
OF COMPETENT JURISDICTION IN A FINAL AND NON-APPEALABLE DECISION), SHALL NOT
CREATE FOR THE ISSUING BANK ANY RESULTING LIABILITY TO THE BORROWER.
(E)
THE ISSUING BANK HEREBY GRANTS TO EACH LENDER, AND EACH LENDER
HEREBY ACQUIRES FROM THE ISSUING BANK, A RATABLE PARTICIPATION INTEREST IN THE
LETTER OF CREDIT.
EACH LENDER ACKNOWLEDGES AND AGREES THAT ITS OBLIGATION TO
ACQUIRE SUCH PARTICIPATION PURSUANT TO THIS PARAGRAPH IN RESPECT OF THE LETTER
OF CREDIT IS ABSOLUTE, IRREVOCABLE, AND UNCONDITIONAL AND SHALL NOT BE AFFECTED
BY ANY CIRCUMSTANCE WHATSOEVER, INCLUDING ANY AMENDMENT, RENEWAL OR EXTENSION OF
THE LETTER OF CREDIT OR THE OCCURRENCE AND CONTINUANCE OF AN EVENT OF DEFAULT
HEREUNDER, OR THE REDUCTION OR TERMINATION OF THE COMMITMENTS.
IN FURTHERANCE
AND NOT IN LIMITATION OF THE FOREGOING, EACH LENDER HEREBY ABSOLUTELY AND
UNCONDITIONALLY AGREES TO PAY TO THE ADMINISTRATIVE AGENT, FOR THE ACCOUNT OF
THE ISSUING BANK, SUCH LENDER'S RATABLE SHARE OF ANY UNPAID DRAWINGS PROMPTLY
UPON DEMAND THEREFOR BY THE ADMINISTRATIVE AGENT.
(F)
UPON RECEIPT BY THE ISSUING BANK OF ANY PAYMENTS FROM THE
BORROWER AS PAYMENT WITH RESPECT TO THE UNPAID DRAWINGS (WHETHER IN RESPECT OF
INTEREST OF PRINCIPAL), THE ISSUING BANK SHALL REMIT SUCH PROCEEDS TO THE
ADMINISTRATIVE AGENT FOR DISTRIBUTION TO THE LENDERS.
(G)
THE ISSUING BANK SHALL PROVIDE NOTICE TO THE CREDIT PARTIES AND
LOAN PARTIES WHENEVER A DRAWING IS MADE UNDER THE LETTER OF CREDIT.
2.10
FRONTING LOANS.
(A)
SUBJECT TO THE TERMS AND CONDITIONS HEREOF, THE FRONTING LENDER
AGREES, WITH RESPECT TO EACH BASE RATE LOAN TO BE ADVANCED TO THE BORROWER, TO
FUND THE PORTION OF SUCH LOAN WHICH IS REQUIRED TO BE FUNDED BY BANK AUSTRIA IN
ITS