ISSUANCE OF A LETTER OF CREDIT
(OR AN AMENDMENT TO A LETTER OF CREDIT INCREASING THE AMOUNT THEREOF) AND
WITHOUT ANY FURTHER ACTION ON THE PART OF THE ISSUING BANK OR THE LENDERS, THE
ISSUING BANK HEREBY GRANTS TO EACH LENDER, AND EACH LENDER HEREBY ACQUIRES FROM
THE ISSUING BANK, A PARTICIPATION IN SUCH LETTER OF CREDIT EQUAL TO SUCH
LENDER'S APPLICABLE
37
PERCENTAGE OF THE AGGREGATE AMOUNT AVAILABLE TO BE DRAWN UNDER SUCH LETTER OF
CREDIT.
IN CONSIDERATION AND IN FURTHERANCE OF THE FOREGOING, EACH LENDER
HEREBY ABSOLUTELY AND UNCONDITIONALLY AGREES TO PAY TO THE ADMINISTRATIVE AGENT,
FOR THE ACCOUNT OF THE ISSUING BANK, SUCH LENDER'S APPLICABLE PERCENTAGE OF EACH
LC DISBURSEMENT MADE BY THE ISSUING BANK AND NOT REIMBURSED BY THE BORROWER ON
THE DATE DUE AS PROVIDED IN SECTION 2.08(E), OR OF ANY REIMBURSEMENT PAYMENT
REQUIRED TO BE REFUNDED TO THE BORROWER FOR ANY REASON.
EACH LENDER
ACKNOWLEDGES AND AGREES THAT ITS OBLIGATION TO ACQUIRE PARTICIPATIONS PURSUANT
TO THIS SECTION 2.08(D) IN RESPECT OF LETTERS OF CREDIT IS ABSOLUTE AND
UNCONDITIONAL AND SHALL NOT BE AFFECTED BY ANY CIRCUMSTANCE WHATSOEVER,
INCLUDING ANY AMENDMENT, RENEWAL OR EXTENSION OF ANY LETTER OF CREDIT OR THE
OCCURRENCE AND CONTINUANCE OF A DEFAULT, THE EXISTENCE OF A BORROWING BASE
DEFICIENCY OR REDUCTION OR TERMINATION OF THE COMMITMENTS, AND THAT EACH SUCH
PAYMENT SHALL BE MADE WITHOUT ANY OFFSET, ABATEMENT, WITHHOLDING OR REDUCTION
WHATSOEVER.
(E)
REIMBURSEMENT.
IF THE ISSUING BANK SHALL MAKE ANY LC DISBURSEMENT
IN RESPECT OF A LETTER OF CREDIT, THE BORROWER SHALL REIMBURSE SUCH LC
DISBURSEMENT BY PAYING TO THE ADMINISTRATIVE AGENT AN AMOUNT EQUAL TO SUCH LC
DISBURSEMENT NOT LATER THAN 12:00 NOON, NEW YORK CITY TIME, ON THE DATE THAT
SUCH LC DISBURSEMENT IS MADE, IF THE BORROWER SHALL HAVE RECEIVED NOTICE OF SUCH
LC DISBURSEMENT PRIOR TO 10:00 A.M., NEW YORK CITY TIME, ON SUCH DATE, OR, IF
SUCH NOTICE HAS NOT BEEN RECEIVED BY THE BORROWER PRIOR TO SUCH TIME ON SUCH
DATE, THEN NOT LATER THAN 12:00 NOON, NEW YORK CITY TIME, ON (I) THE BUSINESS
DAY THAT THE BORROWER RECEIVES SUCH NOTICE, IF SUCH NOTICE IS RECEIVED PRIOR TO
10:00 A.M., NEW YORK CITY TIME, ON THE DAY OF RECEIPT, OR (II) THE BUSINESS DAY
IMMEDIATELY FOLLOWING THE DAY THAT THE BORROWER RECEIVES SUCH NOTICE, IF SUCH
NOTICE IS NOT RECEIVED PRIOR TO SUCH TIME ON THE DAY OF RECEIPT; PROVIDED THAT
IF SUCH LC DISBURSEMENT IS NOT LESS THAN $1,000,000, THE BORROWER SHALL, SUBJECT
TO THE CONDITIONS TO BORROWING SET FORTH HEREIN, BE DEEMED TO HAVE REQUESTED,
AND THE BORROWER DOES HEREBY REQUEST UNDER SUCH CIRCUMSTANCES, THAT SUCH PAYMENT
BE FINANCED WITH AN ABR BORROWING IN AN EQUIVALENT AMOUNT AND, TO THE EXTENT SO
FINANCED, THE BORROWER'S OBLIGATION TO MAKE SUCH PAYMENT SHALL BE DISCHARGED AND
REPLACED BY THE RESULTING ABR BORROWING.
IF THE BORROWER FAILS TO MAKE SUCH
PAYMENT WHEN DUE, THE ADMINISTRATIVE AGENT SHALL NOTIFY EACH LENDER OF THE
APPLICABLE LC DISBURSEMENT, THE PAYMENT THEN DUE FROM THE BORROWER