NOTIFIED BY SUCH LETTER OF CREDIT ISSUER OF SUCH PAYMENT
OR DISBURSEMENT WITH INTEREST ON THE AMOUNT SO PAID OR DISBURSED BY SUCH LETTER
OF CREDIT ISSUER, TO THE EXTENT NOT REIMBURSED PRIOR TO 1:00 P.M. (NEW YORK
TIME) ON THE DATE OF SUCH PAYMENT OR DISBURSEMENT, FROM AND INCLUDING THE DATE
PAID OR DISBURSED TO BUT NOT INCLUDING THE DATE SUCH LETTER OF CREDIT ISSUER IS
REIMBURSED THEREFOR AT A RATE PER ANNUM WHICH SHALL BE THE BASE RATE PLUS THE
APPLICABLE MARGIN FOR REVOLVING LOANS MAINTAINED AS BASE RATE LOANS AS IN EFFECT
FROM TIME TO TIME (PLUS AN ADDITIONAL 2% PER ANNUM IF NOT REIMBURSED BY THE
THIRD BUSINESS DAY AFTER THE DATE OF SUCH NOTICE OF PAYMENT OR DISBURSEMENT),
SUCH INTEREST ALSO TO BE PAYABLE ON DEMAND.
(B)
THE BORROWER'S OBLIGATION UNDER THIS
SECTION 2.03 TO REIMBURSE EACH LETTER OF CREDIT ISSUER WITH RESPECT TO UNPAID
DRAWINGS (INCLUDING, IN EACH CASE, INTEREST THEREON) SHALL BE ABSOLUTE AND
UNCONDITIONAL UNDER ANY AND ALL CIRCUMSTANCES AND IRRESPECTIVE OF ANY SETOFF,
COUNTERCLAIM OR DEFENSE TO PAYMENT WHICH THE BORROWER MAY HAVE OR HAVE HAD
AGAINST SUCH LETTER OF CREDIT ISSUER, THE ADMINISTRATIVE AGENT OR ANY LENDER,
INCLUDING, WITHOUT LIMITATION, ANY DEFENSE BASED UPON THE FAILURE OF ANY DRAWING
UNDER A LETTER OF CREDIT TO CONFORM SUBSTANTIALLY TO THE TERMS OF THE LETTER OF
CREDIT OR ANY NON-APPLICATION OR MISAPPLICATION BY THE BENEFICIARY OF THE
PROCEEDS OF SUCH DRAWING, PROVIDED THAT THE BORROWER SHALL NOT BE OBLIGATED TO
REIMBURSE SUCH LETTER OF CREDIT ISSUER FOR ANY WRONGFUL PAYMENT MADE BY SUCH
LETTER OF CREDIT ISSUER UNDER A LETTER OF CREDIT AS A RESULT OF ACTS OR
OMISSIONS CONSTITUTING WILLFUL MISCONDUCT OR GROSS NEGLIGENCE ON THE PART OF
SUCH LETTER OF CREDIT ISSUER.
2.04
LETTER OF CREDIT PARTICIPATIONS.
(A)
IMMEDIATELY UPON THE ISSUANCE BY
ANY LETTER OF CREDIT ISSUER OF ANY LETTER OF CREDIT, SUCH LETTER OF CREDIT
ISSUER SHALL BE DEEMED TO HAVE SOLD AND TRANSFERRED TO EACH OTHER RF LENDER, AND
EACH SUCH RF LENDER (EACH, A "PARTICIPANT") SHALL BE DEEMED IRREVOCABLY AND
UNCONDITIONALLY TO HAVE PURCHASED AND RECEIVED FROM SUCH LETTER OF CREDIT
ISSUER, WITHOUT RECOURSE OR WARRANTY, AN UNDIVIDED INTEREST AND PARTICIPATION,
TO THE EXTENT OF SUCH PARTICIPANT'S ADJUSTED RF PERCENTAGE, IN SUCH LETTER OF
CREDIT, EACH SUBSTITUTE LETTER OF CREDIT, EACH DRAWING MADE THEREUNDER AND THE
OBLIGATIONS OF THE BORROWER UNDER THIS AGREEMENT WITH RESPECT THERETO (ALTHOUGH
THE LETTER OF CREDIT FEE SHALL BE PAYABLE DIRECTLY TO THE ADMINISTRATIVE AGENT
FOR THE ACCOUNT OF THE RF LENDERS AS PROVIDED IN SECTION 3.01(B) AND THE
PARTICIPANTS SHALL HAVE NO RIGHT TO RECEIVE ANY PORTION OF ANY FACING FEES) AND
ANY SECURITY THEREFOR OR GUARANTY PERTAINING THERETO.
UPON ANY CHANGE IN THE
ADJUSTED RF PERCENTAGES PURSUANT TO SECTION 1.13 AND/OR 12.04(B) AND/OR AS A
RESULT OF A LENDER DEFAULT, IT IS HEREBY AGREED THAT, WITH RESPECT TO ALL
OUTSTANDING LETTERS OF CREDIT AND UNPAID DRAWINGS, THERE SHALL BE AN AUTOMATIC
ADJUSTMENT TO THE PARTICIPATIONS PURSUANT TO THIS SECTION