EXERCISE THE SAME CARE IN THE ISSUANCE AND
ADMINISTRATION OF THE FACILITY LCS AS IT DOES WITH RESPECT TO LETTERS OF CREDIT
IN WHICH NO PARTICIPATIONS ARE GRANTED, IT BEING UNDERSTOOD THAT IN THE ABSENCE
OF ANY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY THE LC ISSUER, EACH LENDER
SHALL BE
34
UNCONDITIONALLY AND IRREVOCABLY LIABLE WITHOUT REGARD TO THE OCCURRENCE OF ANY
DEFAULT OR ANY CONDITION PRECEDENT WHATSOEVER, TO REIMBURSE THE LC ISSUER ON
DEMAND FOR (I) SUCH LENDER'S REVOLVING LOAN PRO RATA SHARE OF THE AMOUNT OF EACH
PAYMENT MADE BY THE LC ISSUER UNDER EACH FACILITY LC TO THE EXTENT SUCH AMOUNT
IS NOT REIMBURSED BY THE BORROWER PURSUANT TO SECTION 2.20.6 BELOW, PLUS
(II) INTEREST ON THE FOREGOING AMOUNT TO BE REIMBURSED BY SUCH LENDER, FOR EACH
DAY FROM THE DATE OF THE LC ISSUER'S DEMAND FOR SUCH REIMBURSEMENT (OR, IF SUCH
DEMAND IS MADE AFTER 11:00 A.M. (LOUISVILLE, KENTUCKY TIME) ON SUCH DATE, FROM
THE NEXT SUCCEEDING BUSINESS DAY) TO THE DATE ON WHICH SUCH LENDER PAYS THE
AMOUNT TO BE REIMBURSED BY IT, AT A RATE OF INTEREST PER ANNUM EQUAL TO THE
FEDERAL FUNDS EFFECTIVE RATE FOR THE FIRST THREE DAYS AND, THEREAFTER, AT A RATE
OF INTEREST EQUAL TO THE RATE APPLICABLE TO FLOATING RATE ADVANCES.
2.20.6
REIMBURSEMENT BY BORROWER.
THE BORROWER SHALL BE IRREVOCABLY AND
UNCONDITIONALLY OBLIGATED TO REIMBURSE THE LC ISSUER ON OR BEFORE THE APPLICABLE
LC PAYMENT DATE FOR ANY AMOUNTS TO BE PAID BY THE LC ISSUER UPON ANY DRAWING
UNDER ANY FACILITY LC, WITHOUT PRESENTMENT, DEMAND, PROTEST OR OTHER FORMALITIES
OF ANY KIND; PROVIDED THAT NEITHER THE BORROWER NOR ANY LENDER SHALL HEREBY BE
PRECLUDED FROM ASSERTING ANY CLAIM FOR DIRECT (BUT NOT CONSEQUENTIAL) DAMAGES
SUFFERED BY THE BORROWER OR SUCH LENDER TO THE EXTENT, BUT ONLY TO THE EXTENT,
CAUSED BY (I) THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE LC ISSUER IN
DETERMINING WHETHER A REQUEST PRESENTED UNDER ANY FACILITY LC ISSUED BY IT
COMPLIED WITH THE TERMS OF SUCH FACILITY LC OR (II) THE LC ISSUER'S FAILURE TO
PAY UNDER ANY FACILITY LC ISSUED BY IT AFTER THE PRESENTATION TO IT OF A REQUEST
STRICTLY COMPLYING WITH THE TERMS AND CONDITIONS OF SUCH FACILITY LC.
IF THE
BORROWER AT ANY TIME FAILS TO REPAY A REIMBURSEMENT OBLIGATION PURSUANT TO THIS
SECTION 2.20, THE BORROWER SHALL BE DEEMED TO HAVE ELECTED TO BORROW A REVOLVING
LOAN FROM THE LENDERS, AS OF THE DATE OF THE PAYMENT BY THE LC ISSUER GIVING
RISE TO THE REIMBURSEMENT OBLIGATION EQUAL IN AMOUNT TO THE AMOUNT OF THE UNPAID
REIMBURSEMENT OBLIGATION.
SUCH REVOLVING LOAN SHALL BE MADE AS OF THE DATE OF
THE PAYMENT GIVING RISE TO SUCH REIMBURSEMENT OBLIGATION, AUTOMATICALLY, WITHOUT
NOTICE AND WITHOUT ANY REQUIREMENT TO SATISFY THE CONDITIONS PRECEDENT OTHERWISE
APPLICABLE TO A REVOLVING LOAN IF THE BORROWER SHALL HAVE FAILED TO MAKE SUCH
PAYMENT TO THE ADMINISTRATIVE AGENT FOR THE ACCOUNT OF THE LC ISSUER PRIOR TO
SUCH TIME.
SUCH REVOLVING LOAN SHALL CONSTITUTE A