THEREOF.
(D)
NOTICE OF ISSUANCE.
EACH LETTER OF CREDIT
SHALL BE ISSUED UPON NOTICE, GIVEN NOT LATER THAN 11:00 A.M. (NEW YORK CITY
TIME) ON THE FIFTH BUSINESS DAY PRIOR TO THE DATE OF THE PROPOSED ISSUANCE OF
SUCH LETTER OF CREDIT (OR ON SUCH SHORTER NOTICE AS THE APPLICABLE ISSUING BANK
MAY AGREE), BY ANY BORROWER TO ANY ISSUING BANK, AND SUCH ISSUING BANK SHALL
GIVE THE AGENT, PROMPT NOTICE THEREOF BY FACSIMILE.
EACH SUCH NOTICE OF
ISSUANCE OF A LETTER OF CREDIT (A "NOTICE OF ISSUANCE") SHALL BE BY TELEPHONE,
CONFIRMED IMMEDIATELY IN WRITING, OR FACSIMILE, SPECIFYING THEREIN THE REQUESTED
(I)
DATE OF SUCH ISSUANCE (WHICH SHALL BE A
BUSINESS DAY),
(II)
AVAILABLE AMOUNT OF SUCH LETTER OF CREDIT
AND DESIGNATION AS A PERFORMANCE LETTER OF CREDIT OR A FINANCIAL LETTER OF
CREDIT,
(III)
EXPIRATION DATE OF SUCH LETTER OF CREDIT
(WHICH SHALL NOT BE LATER THAN 30 DAYS PRIOR TO THE TERMINATION DATE),
(IV)
NAME AND ADDRESS OF THE BENEFICIARY OF SUCH
LETTER OF CREDIT AND
(V)
FORM OF SUCH LETTER OF CREDIT, AND SHALL BE
ACCOMPANIED BY SUCH CUSTOMARY APPLICATION AND AGREEMENT FOR LETTER OF CREDIT AS
SUCH ISSUING BANK MAY SPECIFY TO THE BORROWER REQUESTING SUCH ISSUANCE FOR USE
IN CONNECTION WITH SUCH REQUESTED LETTER OF CREDIT (A "LETTER OF CREDIT
AGREEMENT").
Every Notice of Issuance given by a Subsidiary Borrower must be countersigned by
an authorized representative of TBC, in order to evidence the consent of TBC, in
its sole discretion, to that proposed Letter of Credit.
If the requested form of such Letter of Credit is acceptable to such Issuing
Bank in its sole discretion, such Issuing Bank may, upon fulfillment of the
applicable conditions set forth in Article 5, make such Letter of Credit
available to the Borrower requesting such issuance at its office referred to in
Section 8.2 or as otherwise agreed with such Borrower in connection with such
issuance.
In the event and to the extent that the provisions of any Letter of
Credit Agreement shall conflict with this Agreement, the provisions of this
Agreement shall govern.
(E)
PARTICIPATIONS.
BY THE 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 APPLICABLE ISSUING
BANK OR THE LENDERS, SUCH ISSUING BANK HEREBY GRANTS TO EACH LENDER, AND EACH
LENDER HEREBY ACQUIRES FROM SUCH ISSUING BANK, A PARTICIPATION IN SUCH LETTER OF
CREDIT EQUAL TO SUCH LENDER'S RATABLE SHARE OF THE AVAILABLE AMOUNT OF SUCH
LETTER OF CREDIT.
EACH BORROWER HEREBY AGREES TO EACH SUCH PARTICIPATION.
IN
CONSIDERATION AND IN FURTHERANCE OF THE FOREGOING, EACH LENDER HEREBY ABSOLUTELY
AND UNCONDITIONALLY AGREES TO PAY TO THE AGENT, FOR THE ACCOUNT OF SUCH ISSUING
BANK, SUCH LENDER'S RATABLE SHARE OF EACH DRAWING MADE UNDER A LETTER OF CREDIT
FUNDED BY SUCH ISSUING BANK AND NOT REIMBURSED BY THE APPLICABLE BORROWER ON THE
DATE MADE, OR OF ANY REIMBURSEMENT PAYMENT REQUIRED TO BE REFUNDED TO ANY
BORROWER