THE PROVISIONS OF CLAUSE (B) OF
SECTION 3.1 OR OTHERWISE), OR (B) IT HAS RECEIVED NOTICE (WHICH MAY BE BY
TELEPHONE OR IN WRITING) ON OR BEFORE THE DAY THAT IS FIVE BUSINESS DAYS BEFORE
THE NON-EXTENSION NOTICE DATE (1) FROM THE ADMINISTRATIVE AGENT THAT THE
REQUIRED REVOLVING CREDIT LENDERS HAVE ELECTED NOT TO PERMIT SUCH EXTENSION OR
(2) FROM THE ADMINISTRATIVE AGENT, ANY LENDER OR THE BORROWER THAT ONE OR MORE
OF THE APPLICABLE CONDITIONS SPECIFIED IN SECTIONS 6 AND 7 ARE NOT THEN
SATISFIED, AND IN EACH SUCH CASE DIRECTING THE LETTER OF CREDIT ISSUER NOT TO
PERMIT SUCH EXTENSION.
(E)
PROMPTLY AFTER ITS DELIVERY OF ANY LETTER OF CREDIT OR ANY
AMENDMENT TO A LETTER OF CREDIT (INCLUDING ANY EXISTING SECURED LETTER OF
CREDIT) TO AN ADVISING BANK WITH RESPECT THERETO OR TO THE BENEFICIARY THEREOF,
THE LETTER OF CREDIT ISSUER WILL ALSO DELIVER TO THE BORROWER AND THE
ADMINISTRATIVE AGENT A TRUE AND COMPLETE COPY OF SUCH LETTER OF CREDIT OR
AMENDMENT. ON THE LAST BUSINESS DAY OF EACH MONTH, EACH LETTER OF CREDIT ISSUER
SHALL PROVIDE THE ADMINISTRATIVE AGENT A LIST OF ALL LETTERS OF CREDIT
(INCLUDING ANY EXISTING SECURED LETTER OF CREDIT) ISSUED BY IT THAT ARE
OUTSTANDING AT SUCH TIME.
(F)
THE MAKING OF EACH LETTER OF CREDIT REQUEST SHALL BE DEEMED TO BE
A REPRESENTATION AND WARRANTY BY THE BORROWER THAT THE LETTER OF CREDIT MAY BE
ISSUED IN ACCORDANCE WITH, AND WILL NOT VIOLATE THE REQUIREMENTS OF, SECTION
3.1(B).
3.3.
LETTER OF CREDIT PARTICIPATIONS.
(A)
IMMEDIATELY UPON THE ISSUANCE BY THE LETTER OF CREDIT ISSUER OF
ANY LETTER OF CREDIT, THE LETTER OF CREDIT ISSUER SHALL BE DEEMED TO HAVE SOLD
AND TRANSFERRED TO EACH REVOLVING CREDIT
68
LENDER (EACH SUCH REVOLVING CREDIT LENDER, IN ITS CAPACITY UNDER THIS SECTION
3.3, AN "L/C PARTICIPANT"), AND EACH SUCH L/C PARTICIPANT SHALL BE DEEMED
IRREVOCABLY AND UNCONDITIONALLY TO HAVE PURCHASED AND RECEIVED FROM THE LETTER
OF CREDIT ISSUER, WITHOUT RECOURSE OR WARRANTY, AN UNDIVIDED INTEREST AND
PARTICIPATION (EACH AN "L/C PARTICIPATION"), TO THE EXTENT OF SUCH L/C
PARTICIPANT'S REVOLVING CREDIT COMMITMENT PERCENTAGE IN EACH LETTER OF CREDIT,
EACH SUBSTITUTE THEREFOR, EACH DRAWING MADE THEREUNDER AND THE OBLIGATIONS OF
THE BORROWER UNDER THIS AGREEMENT WITH RESPECT THERETO, AND ANY SECURITY
THEREFOR OR GUARANTY PERTAINING THERETO; PROVIDED THAT THE LETTER OF CREDIT FEES
WILL BE PAID DIRECTLY TO THE ADMINISTRATIVE AGENT FOR THE RATABLE ACCOUNT OF THE
L/C PARTICIPANTS AS PROVIDED IN SECTION 4.1(B) AND THE L/C PARTICIPANTS SHALL
HAVE NO RIGHT TO RECEIVE ANY PORTION OF ANY FRONTING FEES.
(B)
IN DETERMINING WHETHER TO PAY UNDER ANY LETTER OF CREDIT, THE
RELEVANT LETTER OF CREDIT ISSUER SHALL HAVE NO OBLIGATION RELATIVE TO THE L/C
PARTICIPANTS OTHER THAN TO CONFIRM THAT ANY DOCUMENTS REQUIRED TO BE DELIVERED
UNDER SUCH LETTER OF CREDIT HAVE BEEN DELIVERED AND THAT THEY APPEAR TO COMPLY
ON THEIR FACE WITH THE REQUIREMENTS OF SUCH LETTER OF CREDIT. ANY ACTION TAKEN
OR OMITTED TO BE TAKEN BY THE RELEVANT LETTER