ISSUANCE OF A LETTER OF CREDIT, NO LATER
THAN 1:00 P.M. (NEW YORK CITY TIME) ON THE DATE OF SUCH ISSUANCE AS INDICATED IN
THE NOTICE DELIVERED PURSUANT TO SECTION 2.2(B), THE FRONTING BANK SHALL ISSUE
SUCH LETTER OF CREDIT FOR THE AMOUNT SO REQUESTED AND DELIVER THE SAME TO, OR AS
DIRECTED IN WRITING BY, THE BORROWER, WITH A COPY THEREOF TO THE ADMINISTRATIVE
AGENT.
IMMEDIATELY UPON THE ISSUANCE OF EACH LETTER OF CREDIT BY THE FRONTING
BANK, THE FRONTING BANK SHALL BE DEEMED TO HAVE SOLD AND TRANSFERRED TO EACH
OTHER BANK, AND EACH SUCH OTHER BANK SHALL BE DEEMED, AND HEREBY AGREES, TO HAVE
IRREVOCABLY AND UNCONDITIONALLY PURCHASED AND RECEIVED FROM THE FRONTING BANK,
WITHOUT RECOURSE OR WARRANTY, AN UNDIVIDED INTEREST AND A PARTICIPATION IN SUCH
LETTER OF CREDIT, ANY DRAWING THEREUNDER, AND ITS OBLIGATION TO PAY ITS PRO RATA
SHARE WITH RESPECT THERETO, AND ANY SECURITY THEREFOR OR GUARANTY PERTAINING
THERETO, IN AN AMOUNT EQUAL TO SUCH BANK'S RATABLE SHARE THEREOF.
UPON ANY
CHANGE IN ANY OF THE COMMITMENTS IN ACCORDANCE HEREWITH, THERE SHALL BE AN
AUTOMATIC ADJUSTMENT TO SUCH PARTICIPATIONS TO REFLECT SUCH CHANGED SHARES.
THE
FRONTING BANK SHALL HAVE THE PRIMARY OBLIGATION TO FUND ANY AND ALL DRAWS MADE
WITH RESPECT TO SUCH LETTER OF CREDIT NOTWITHSTANDING ANY FAILURE OF A
PARTICIPATING BANK TO FUND ITS RATABLE SHARE OF ANY SUCH DRAW.
THE
ADMINISTRATIVE AGENT WILL INSTRUCT THE FRONTING BANK TO MAKE SUCH LETTER OF
CREDIT AVAILABLE TO THE BORROWER AND THE FRONTING BANK SHALL MAKE SUCH LETTER OF
CREDIT AVAILABLE TO THE BORROWER, AT ITS AFORESAID ADDRESS OR AT SUCH ADDRESS IN
THE UNITED STATES OR AT SUCH ADDRESS IN EUROPE, THE UNITED KINGDOM, CANADA OR
THE UNITED STATES AS THE BORROWER SHALL REQUEST ON THE DATE OF BORROWING.
(C)
NOT LATER THAN 3:00 P.M. (NEW YORK CITY TIME) ON THE DATE OF EACH
SWINGLINE BORROWING AS INDICATED IN THE APPLICABLE NOTICE OF BORROWING, THE
SWINGLINE LENDER SHALL MAKE AVAILABLE SUCH SWINGLINE BORROWING IN FEDERAL FUNDS
IMMEDIATELY AVAILABLE IN NEW YORK, NEW YORK TO THE ADMINISTRATIVE AGENT AT ITS
ADDRESS REFERRED TO IN SECTION 9.1.
(D)
UNLESS THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED NOTICE FROM A
BANK PRIOR TO THE TIME OF ANY BORROWING THAT SUCH BANK WILL NOT MAKE AVAILABLE
TO THE ADMINISTRATIVE AGENT SUCH BANK'S SHARE OF SUCH BORROWING, THE
ADMINISTRATIVE AGENT MAY ASSUME THAT SUCH BANK HAS MADE SUCH SHARE AVAILABLE TO
THE ADMINISTRATIVE AGENT ON THE DATE OF SUCH BORROWING IN ACCORDANCE WITH THIS
SECTION 2.5 AND THE ADMINISTRATIVE AGENT MAY, IN RELIANCE UPON SUCH ASSUMPTION,
BUT SHALL NOT BE OBLIGATED TO, MAKE AVAILABLE TO THE BORROWER ON SUCH DATE A
CORRESPONDING AMOUNT ON BEHALF OF SUCH BANK.
IF AND TO THE EXTENT THAT SUCH
BANK SHALL NOT HAVE SO MADE SUCH SHARE AVAILABLE TO THE ADMINISTRATIVE AGENT,
SUCH BANK AGREES TO REPAY TO THE ADMINISTRATIVE AGENT FORTHWITH ON DEMAND SUCH
CORRESPONDING AMOUNT TOGETHER WITH INTEREST
33
THEREON, AT THE FEDERAL FUNDS RATE WITH RESPECT TO DOLLAR LOANS