TO PAY TO BANK OF AMERICA THE AMOUNT OF ALL OTHER
REIMBURSEMENT OBLIGATIONS AND OTHER AMOUNTS PAYABLE TO BANK OF AMERICA UNDER OR
IN CONNECTION WITH SUCH LETTER OF CREDIT IMMEDIATELY WHEN DUE, IRRESPECTIVE OF
ANY CLAIM, SET-OFF, DEFENSE OR OTHER RIGHT WHICH THE BORROWER MAY HAVE AT ANY
TIME AGAINST BANK OF AMERICA OR ANY OTHER PERSON.
(B)
RECOVERY OR AVOIDANCE OF PAYMENTS.
IN THE EVENT ANY PAYMENT BY OR
ON BEHALF OF THE BORROWER WITH RESPECT TO ANY LETTER OF CREDIT (OR ANY
REIMBURSEMENT OBLIGATION RELATING THERETO) RECEIVED BY BANK OF AMERICA, OR BY
THE ADMINISTRATIVE AGENT AND DISTRIBUTED BY THE ADMINISTRATIVE AGENT TO THE
LENDERS ON ACCOUNT OF THEIR RESPECTIVE PARTICIPATIONS THEREIN, IS THEREAFTER SET
ASIDE, AVOIDED OR RECOVERED FROM BANK OF AMERICA OR THE ADMINISTRATIVE AGENT IN
CONNECTION WITH ANY RECEIVERSHIP, LIQUIDATION OR BANKRUPTCY PROCEEDING, THE
LENDERS SHALL, UPON DEMAND BY THE ADMINISTRATIVE AGENT, PAY TO THE
ADMINISTRATIVE AGENT, FOR THE ACCOUNT OF THE ADMINISTRATIVE AGENT OR BANK OF
AMERICA, THEIR RESPECTIVE PROPORTIONATE SHARES OF SUCH AMOUNT SET ASIDE, AVOIDED
OR RECOVERED TOGETHER WITH INTEREST AT THE RATE REQUIRED TO BE PAID BY THE
ADMINISTRATIVE AGENT (OR BANK OF AMERICA) UPON THE AMOUNT REQUIRED TO BE REPAID
BY IT.
SECTION 3.7
PARTICIPATIONS.
(A)
PURCHASE OF PARTICIPATIONS.
ON THE EFFECTIVE DATE WITH RESPECT TO
ANY LETTERS OF CREDIT OR BANKERS ACCEPTANCES OUTSTANDING ON SUCH DATE AND
IMMEDIATELY UPON ISSUANCE BY BANK OF AMERICA OF A LETTER OF CREDIT OR CREATION
BY BANK OF AMERICA OF A BANKERS ACCEPTANCE WITH RESPECT TO ALL OTHER LETTERS OF
CREDIT, EACH LENDER SHALL BE DEEMED TO HAVE IRREVOCABLY AND UNCONDITIONALLY
PURCHASED AND RECEIVED WITHOUT RECOURSE OR WARRANTY, AN UNDIVIDED INTEREST AND
PARTICIPATION IN SUCH LETTER OF CREDIT OR BANKERS ACCEPTANCE, EQUAL TO SUCH
LENDER'S PROPORTIONATE SHARE OF THE FACE AMOUNT THEREOF (INCLUDING, WITHOUT
LIMITATION, ALL
37
OBLIGATIONS OF THE BORROWER WITH RESPECT THERETO, OTHER THAN AMOUNTS OWING TO
BANK OF AMERICA UNDER SECTION 4.2(C), AND ANY SECURITY THEREFOR OR GUARANTY
PERTAINING THERETO).
(B)
SHARING OF LETTER OF CREDIT PAYMENTS.
IN THE EVENT THAT BANK OF
AMERICA MAKES A PAYMENT UNDER ANY LETTER OF CREDIT AND BANK OF AMERICA SHALL NOT
HAVE BEEN REPAID SUCH AMOUNT PURSUANT TO SECTION 3.6, THEN BANK OF AMERICA SHALL
BE DEEMED TO HAVE MADE A NON-RATABLE LOAN IN THE AMOUNT OF SUCH PAYMENT, AND
NOTWITHSTANDING THE OCCURRENCE OR CONTINUANCE OF A DEFAULT OR EVENT OF DEFAULT
AT THE TIME OF SUCH PAYMENT, SUCH NON-RATABLE LOAN SHALL BE SUBJECT TO THE
PROVISIONS OF SECTION 4.8(B) AND THE ABSOLUTE OBLIGATIONS OF THE LENDERS TO PAY
FOR THEIR RESPECTIVE PARTICIPATION INTERESTS THEREIN.
(C)
SHARING OF REIMBURSEMENT OBLIGATION PAYMENTS.
WHENEVER BANK OF
AMERICA RECEIVES A PAYMENT FROM OR ON BEHALF OF THE BORROWER ON ACCOUNT OF A
REIMBURSEMENT OBLIGATION AS TO WHICH THE ADMINISTRATIVE AGENT HAS PREVIOUSLY
RECEIVED FOR THE ACCOUNT OF BANK OF AMERICA PAYMENT FROM A LENDER PURSUANT TO
THIS SECTION 3.7, BANK OF AMERICA SHALL PROMPTLY PAY TO THE ADMINISTRATIVE
AGENT, FOR THE BENEFIT OF SUCH