DEEMED TO HAVE IRREVOCABLY AND
UNCONDITIONALLY PURCHASED AND RECEIVED, WITHOUT RECOURSE OR WARRANTY, AN
UNDIVIDED INTEREST AND PARTICIPATION TO THE EXTENT OF SUCH LENDER'S PRO RATA
SHARE OF THE LIABILITY WITH RESPECT TO SUCH LETTER OF CREDIT ACCOMMODATION
(INCLUDING, WITHOUT LIMITATION, ALL OBLIGATIONS WITH RESPECT THERETO).
(M)
EACH BORROWER IS IRREVOCABLY AND UNCONDITIONALLY OBLIGATED, WITHOUT
PRESENTMENT, DEMAND OR PROTEST, TO PAY TO ADMINISTRATIVE AGENT ANY AMOUNTS PAID
BY AN ISSUER OF A LETTER OF CREDIT ACCOMMODATION WITH RESPECT TO SUCH LETTER OF
CREDIT ACCOMMODATION (WHETHER THROUGH THE BORROWING OF LOANS IN ACCORDANCE WITH
SECTION 2.4(A) OR OTHERWISE); PROVIDED, THAT, NOTHING CONTAINED HEREIN SHALL BE
CONSTRUED TO LIMIT OR WAIVE ANY RIGHT OF ANY BORROWER TO ASSERT AGAINST AN
ISSUER OF A LETTER OF CREDIT ACCOMMODATION ANY CLAIM FOR DIRECT DAMAGES SUFFERED
BY SUCH BORROWER TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF THE ISSUER IN DETERMINING WHETHER A REQUEST PRESENTED UNDER ANY
LETTER OF CREDIT ACCOMMODATION ISSUED BY IT COMPLIED WITH THE TERMS OF SUCH
LETTER OF CREDIT ACCOMMODATION.
IN THE EVENT THAT ANY BORROWER FAILS TO PAY
ADMINISTRATIVE AGENT ON THE DATE OF ANY PAYMENT UNDER A LETTER OF CREDIT
ACCOMMODATION IN AN AMOUNT EQUAL TO THE AMOUNT OF SUCH PAYMENT, ADMINISTRATIVE
AGENT (TO THE EXTENT IT HAS ACTUAL NOTICE THEREOF) SHALL PROMPTLY NOTIFY EACH
TRANCHE A LENDER OF THE UNREIMBURSED AMOUNT OF SUCH PAYMENT AND EACH TRANCHE A
LENDER AGREES, UPON ONE (1) BUSINESS DAY'S NOTICE, TO FUND TO ADMINISTRATIVE
AGENT THE PURCHASE OF ITS PARTICIPATION IN SUCH LETTER OF CREDIT ACCOMMODATION
IN AN AMOUNT EQUAL TO ITS PRO RATA SHARE OF THE UNPAID AMOUNT.
THE OBLIGATION
OF EACH TRANCHE A LENDER TO DELIVER TO ADMINISTRATIVE AGENT AN AMOUNT EQUAL TO
ITS RESPECTIVE PARTICIPATION PURSUANT TO THE FOREGOING SENTENCE IS ABSOLUTE AND
UNCONDITIONAL AND SUCH REMITTANCE SHALL BE MADE NOTWITHSTANDING THE OCCURRENCE
OR CONTINUANCE OF ANY EVENT OF DEFAULT, THE FAILURE TO SATISFY ANY OTHER
CONDITION SET FORTH IN SECTION 4 OR ANY OTHER EVENT OR CIRCUMSTANCE.
IF SUCH
AMOUNT IS NOT MADE AVAILABLE BY A TRANCHE A LENDER WHEN DUE, ADMINISTRATIVE
AGENT SHALL BE ENTITLED TO RECOVER SUCH AMOUNT ON DEMAND FROM SUCH TRANCHE A
LENDER WITH INTEREST THEREON, FOR EACH DAY FROM THE DATE SUCH PAYMENT WAS DUE
UNTIL THE DATE SUCH AMOUNT IS PAID TO ADMINISTRATIVE AGENT AT THE FEDERAL FUNDS
RATE FOR EACH DAY DURING SUCH PERIOD (AS PUBLISHED BY THE FEDERAL RESERVE BANK
OF NEW YORK OR AT ADMINISTRATIVE AGENT'S OPTION BASED ON THE ARITHMETIC MEAN
DETERMINED BY ADMINISTRATIVE AGENT OF THE RATES FOR THE LAST TRANSACTION IN
OVERNIGHT FEDERAL FUNDS ARRANGED PRIOR TO 9:00 A.M. (NEW YORK CITY TIME) ON THAT
DAY BY EACH OF THE THREE LEADING BROKERS OF FEDERAL FUNDS TRANSACTIONS IN NEW
YORK CITY SELECTED BY ADMINISTRATIVE AGENT) AND IF SUCH AMOUNTS ARE NOT PAID
WITHIN THREE (3) DAYS OF ADMINISTRATIVE AGENT'S DEMAND, AT THE HIGHEST INTEREST
RATE PROVIDED FOR IN SECTION 3.1 HEREOF APPLICABLE TO BASE RATE LOANS.
2.5
PREPAYMENTS.
(A)
BORROWERS MAY PREPAY