THE ISSUING BANK UNDER ANY LETTER OF CREDIT (THE AMOUNT OF
EACH SUCH AMOUNT SO PAID UNTIL REIMBURSED, AN "UNPAID DRAWING") IMMEDIATELY
AFTER, AND IN ANY EVENT WITHIN TWO BUSINESS DAYS OF, SUCH PAYMENT, WITH INTEREST
ON THE AMOUNT SO PAID OR DISBURSED BY THE ISSUING BANK, TO THE EXTENT NOT
REIMBURSED PRIOR TO 5:00 P.M. (NEW YORK TIME) ON THE SECOND BUSINESS DAY
FOLLOWING SUCH PAYMENT OR DISBURSEMENT, FROM AND INCLUDING THE DATE PAID OR
DISBURSED TO BUT EXCLUDING THE DATE THE ISSUING BANK IS REIMBURSED THEREFOR AT A
RATE PER ANNUM THAT SHALL AT ALL TIMES BE THE APPLICABLE RATE FOR BASE RATE
LOANS PLUS THE BASE RATE AS IN EFFECT FROM TIME TO TIME, PROVIDED THAT,
NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, (I) UNLESS
THE APPLICABLE BORROWER SHALL HAVE NOTIFIED THE ADMINISTRATIVE AGENT AND THE
ISSUING BANK PRIOR TO 10:00 A.M. (NEW YORK TIME) ON THE DATE OF SUCH DRAWING
THAT SUCH BORROWER INTENDS TO REIMBURSE THE ISSUING BANK FOR THE AMOUNT OF SUCH
DRAWING WITH FUNDS OTHER THAN THE PROCEEDS OF LOANS, SUCH BORROWER BE SHALL BE
DEEMED TO HAVE GIVEN A REQUEST FOR BORROWING REQUESTING THAT THE LENDERS WITH
COMMITMENTS MAKE REVOLVING LOANS (WHICH SHALL BE BASE RATE LOANS) ON THE DATE ON
WHICH SUCH DRAWING IS HONORED IN AN AMOUNT EQUAL TO THE AMOUNT OF SUCH DRAWING
AND (II) THE ADMINISTRATIVE AGENT SHALL PROMPTLY NOTIFY EACH RELEVANT L/C
PARTICIPANT OF SUCH DRAWING AND THE AMOUNT OF ITS REVOLVING LOAN TO BE MADE IN
RESPECT THEREOF, AND, SUBJECT TO THE CONDITIONS SET FORTH IN SECTION 2.01, EACH
L/C PARTICIPANT SHALL BE IRREVOCABLY OBLIGATED TO MAKE A REVOLVING LOAN TO SUCH
BORROWER IN THE MANNER DEEMED TO HAVE BEEN REQUESTED IN THE AMOUNT OF ITS
APPLICABLE PERCENTAGE OF THE APPLICABLE UNPAID DRAWING BY 12:00 NOON (NEW YORK
TIME) ON SUCH BUSINESS DAY BY MAKING THE AMOUNT OF SUCH REVOLVING LOAN AVAILABLE
TO THE ADMINISTRATIVE AGENT.
SUCH REVOLVING LOANS SHALL BE MADE WITHOUT REGARD
TO THE MINIMUM BORROWING AMOUNT FOR BASE RATE LOANS.
THE ADMINISTRATIVE AGENT
SHALL USE THE PROCEEDS OF SUCH REVOLVING LOANS SOLELY FOR PURPOSE OF REIMBURSING
THE ISSUING BANK FOR THE RELATED UNPAID DRAWING.
36
(II)
THE OBLIGATIONS OF EACH BORROWER UNDER THIS SECTION 2.04(D) TO
REIMBURSE THE ISSUING BANK WITH RESPECT TO UNPAID DRAWINGS (INCLUDING, IN EACH
CASE, INTEREST THEREON) SHALL BE ABSOLUTE AND UNCONDITIONAL UNDER ANY AND ALL
CIRCUMSTANCES AND IRRESPECTIVE OF ANY SET-OFF, COUNTERCLAIM OR DEFENSE TO
PAYMENT THAT ANY SUCH BORROWER OR ANY OTHER PERSON MAY HAVE OR HAVE HAD AGAINST
THE ISSUING BANK, THE ADMINISTRATIVE AGENT OR ANY LENDER (INCLUDING IN ITS
CAPACITY AS AN L/C PARTICIPANT), INCLUDING 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 THAT NO BORROWER SHALL BE OBLIGATED TO
REIMBURSE THE ISSUING BANK FOR ANY WRONGFUL PAYMENT MADE BY THE