CREDIT LENDER, AND EACH SUCH LENDER HEREBY
ACQUIRES FROM THE ISSUING BANK, A PARTICIPATION IN SUCH LETTER OF CREDIT EQUAL
TO SUCH LENDER'S PRO RATA PERCENTAGE OF THE AGGREGATE AMOUNT AVAILABLE TO BE
DRAWN UNDER SUCH LETTER OF CREDIT, EFFECTIVE UPON THE ISSUANCE OF SUCH LETTER OF
CREDIT.
IN CONSIDERATION AND IN FURTHERANCE OF THE FOREGOING, EACH REVOLVING
CREDIT LENDER HEREBY ABSOLUTELY AND UNCONDITIONALLY AGREES TO PAY TO THE
ADMINISTRATIVE AGENT, FOR THE ACCOUNT OF THE ISSUING BANK, SUCH LENDER'S PRO
RATA PERCENTAGE OF EACH L/C DISBURSEMENT MADE BY THE ISSUING BANK AND NOT
REIMBURSED BY THE BORROWER (OR, IF APPLICABLE, ANOTHER PARTY PURSUANT TO ITS
OBLIGATIONS UNDER ANY OTHER LOAN DOCUMENT) FORTHWITH ON THE DATE DUE AS PROVIDED
IN SECTION 2.02(F).
EACH REVOLVING CREDIT 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 THE OCCURRENCE AND CONTINUANCE OF A
DEFAULT OR AN EVENT OF DEFAULT, AND THAT EACH SUCH PAYMENT SHALL BE MADE WITHOUT
ANY OFFSET, ABATEMENT, WITHHOLDING OR REDUCTION WHATSOEVER.
(E)
REIMBURSEMENT.
IF THE ISSUING BANK SHALL MAKE ANY L/C DISBURSEMENT IN
RESPECT OF A LETTER OF CREDIT, THE BORROWER SHALL PAY TO THE ISSUING BANK AN
AMOUNT EQUAL TO SUCH L/C DISBURSEMENT ON THE SAME BUSINESS DAY ON WHICH THE
BORROWER SHALL HAVE RECEIVED NOTICE FROM THE ISSUING BANK THAT PAYMENT OF SUCH
DRAFT WILL BE MADE, OR, IF THE BORROWER SHALL HAVE RECEIVED SUCH NOTICE LATER
THAN 1:00 P.M., NEW YORK CITY TIME, ON ANY BUSINESS DAY, NOT LATER THAN
1:00 P.M., NEW YORK CITY TIME, ON THE IMMEDIATELY FOLLOWING BUSINESS DAY;
PROVIDED THAT TO SATISFY ITS REIMBURSEMENT OBLIGATION UNDER THIS PARAGRAPH (E),
THE BORROWER MAY, SUBJECT TO THE CONDITIONS TO BORROWING SET FORTH HEREIN,
REQUEST IN ACCORDANCE WITH SECTION 2.03 OR 2.22 AN ABR REVOLVING LOAN OR
SWINGLINE LOAN TO BE MADE BY THE REVOLVING CREDIT LENDERS OR THE SWINGLINE
LENDER, RESPECTIVELY, IN THE AGGREGATE AMOUNT OF ANY SUCH L/C DISBURSEMENT.
(F)
OBLIGATIONS ABSOLUTE.
THE BORROWER'S OBLIGATIONS TO REIMBURSE L/C
DISBURSEMENTS AS PROVIDED IN PARAGRAPH (E) ABOVE 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 ANY LETTER OF CREDIT OR ANY LOAN
DOCUMENT, OR ANY TERM OR PROVISION THEREIN;
44
(II)
ANY AMENDMENT OR WAIVER OF OR ANY CONSENT TO DEPARTURE FROM ALL OR ANY OF
THE PROVISIONS OF ANY LETTER OF CREDIT OR ANY LOAN DOCUMENT;
(III)
THE EXISTENCE OF ANY CLAIM, SETOFF, DEFENSE OR OTHER RIGHT THAT THE
BORROWER, ANY OTHER PARTY GUARANTEEING, OR OTHERWISE OBLIGATED WITH, THE
BORROWER, ANY SUBSIDIARY OR OTHER AFFILIATE THEREOF OR ANY OTHER PERSON MAY AT
ANY TIME HAVE AGAINST THE BENEFICIARY UNDER ANY LETTER OF CREDIT, THE ISSUING
BANK, THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY OTHER PERSON, WHETHER IN
CONNECTION WITH