BORROWER AND EACH LENDER SHALL BE ONLY TO
DETERMINE THAT THE DOCUMENTS (INCLUDING EACH DEMAND FOR PAYMENT) DELIVERED UNDER
EACH FACILITY LC IN CONNECTION WITH SUCH PRESENTMENT SHALL BE IN CONFORMITY IN
ALL MATERIAL RESPECTS WITH SUCH FACILITY LC.
EACH LC ISSUER SHALL ENDEAVOR TO
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 APPLICABLE LC ISSUER, EACH LENDER SHALL BE
UNCONDITIONALLY AND IRREVOCABLY LIABLE WITHOUT REGARD TO THE OCCURRENCE OF ANY
DEFAULT OR ANY CONDITION PRECEDENT WHATSOEVER, TO REIMBURSE SUCH LC ISSUER ON
DEMAND FOR (A) SUCH LENDER'S PRO RATA SHARE OF THE AMOUNT OF EACH PAYMENT MADE
BY SUCH LC ISSUER UNDER EACH FACILITY LC TO THE EXTENT SUCH AMOUNT IS NOT
REIMBURSED BY THE BORROWER PURSUANT TO SECTION 2.19.6 BELOW, PLUS (B) INTEREST
ON THE FOREGOING AMOUNT TO BE REIMBURSED BY SUCH LENDER, FOR EACH DAY FROM THE
DATE OF SUCH LC ISSUER'S DEMAND FOR SUCH REIMBURSEMENT (OR, IF SUCH DEMAND IS
MADE AFTER 12:00 P.M. (NEW YORK 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 ALTERNATE BASE RATE LOANS.
2.19.6.
REIMBURSEMENT BY BORROWER.
THE BORROWER SHALL BE
IRREVOCABLY AND UNCONDITIONALLY OBLIGATED TO REIMBURSE THE APPLICABLE LC ISSUER
ON OR BEFORE THE APPLICABLE LC PAYMENT DATE FOR ANY AMOUNTS PAID OR TO BE PAID
BY SUCH 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 (IN THE CASE OF CLAUSE (A) BELOW) 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 (A) THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE APPLICABLE LC
ISSUER IN DETERMINING WHETHER A REQUEST PRESENTED UNDER ANY FACILITY LC ISSUED
BY IT COMPLIED WITH THE TERMS OF SUCH FACILITY LC OR (B) THE APPLICABLE 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.
ALL SUCH AMOUNTS PAID BY ANY LC ISSUER AND REMAINING
UNPAID BY THE BORROWER SHALL BEAR INTEREST, PAYABLE ON
23
DEMAND, FOR EACH DAY UNTIL PAID AT A RATE PER ANNUM EQUAL TO THE ALTERNATE BASE
RATE PLUS 2%.
EACH LC ISSUER WILL PAY TO EACH LENDER RATABLY IN ACCORDANCE WITH
ITS PRO RATA SHARE ALL AMOUNTS RECEIVED BY IT FROM THE BORROWER FOR APPLICATION
IN PAYMENT, IN WHOLE OR IN PART, OF