IT HAS RECEIVED NOTICE (WHICH MAY BE BY TELEPHONE OR IN WRITING)
FIVE BUSINESS DAYS PRIOR TO THE DAY THAT IS 30 DAYS (OR SUCH LONGER PERIOD AS
MAY BE SPECIFIED IN SUCH LETTER OF CREDIT) PRIOR TO THE THEN-APPLICABLE LETTER
OF CREDIT EXPIRATION DATE FROM THE ADMINISTRATIVE AGENT, ANY REVOLVING CREDIT
LENDER OR THE BORROWER THAT ONE OR MORE OF THE APPLICABLE CONDITIONS SPECIFIED
IN SECTION 4.01 IS NOT THEN SATISFIED OR WAIVED.
(D)
BY THE ISSUANCE OF A LETTER OF CREDIT AND WITHOUT ANY FURTHER
ACTION ON THE PART OF AN ISSUING BANK OR THE LENDERS, SUCH ISSUING BANK HEREBY
GRANTS TO EACH REVOLVING CREDIT LENDER, AND EACH SUCH LENDER HEREBY ACQUIRES
FROM SUCH ISSUING BANK, A PARTICIPATION IN SUCH LETTER OF CREDIT EQUAL TO SUCH
LENDER'S PRO RATA PERCENTAGE OF THE AGGREGATE AMOUNT AVAILABLE TO BE DRAWN UNDER
SUCH LETTER OF CREDIT, EFFECTIVE UPON THE ISSUANCE OF SUCH LETTER OF CREDIT.
IN
CONSIDERATION AND IN FURTHERANCE OF THE FOREGOING, EACH REVOLVING CREDIT LENDER
HEREBY ABSOLUTELY AND UNCONDITIONALLY AGREES TO PAY TO THE ADMINISTRATIVE AGENT,
FOR THE ACCOUNT OF SUCH ISSUING BANK, SUCH LENDER'S PRO RATA PERCENTAGE OF EACH
L/C DISBURSEMENT MADE BY SUCH ISSUING BANK AND NOT REIMBURSED BY THE BORROWER
(OR, IF APPLICABLE, ANOTHER PARTY PURSUANT TO ITS OBLIGATIONS UNDER ANY OTHER
LOAN DOCUMENT) FORTHWITH ON THE DATE DUE AS PROVIDED IN SECTION 2.02(F).
EACH
REVOLVING CREDIT LENDER ACKNOWLEDGES AND AGREES THAT ITS OBLIGATION TO ACQUIRE
PARTICIPATIONS PURSUANT TO THIS PARAGRAPH IN RESPECT OF LETTERS OF CREDIT IS
ABSOLUTE AND UNCONDITIONAL AND SHALL NOT BE AFFECTED BY ANY CIRCUMSTANCE
WHATSOEVER, INCLUDING THE
84
OCCURRENCE AND CONTINUANCE OF A DEFAULT OR AN EVENT OF DEFAULT, AND THAT EACH
SUCH PAYMENT SHALL BE MADE WITHOUT ANY OFFSET, ABATEMENT, WITHHOLDING OR
REDUCTION WHATSOEVER.
UPON ANY CHANGE IN THE REVOLVING CREDIT COMMITMENTS OR
PRO RATA PERCENTAGES OF THE REVOLVING CREDIT LENDERS PURSUANT TO SECTION 2.21 OR
9.04(B), IT IS HEREBY AGREED THAT, WITH RESPECT TO ALL OUTSTANDING LETTERS OF
CREDIT AND UNREIMBURSED L/C DISBURSEMENTS RELATING THERETO, THERE SHALL BE AN
AUTOMATIC ADJUSTMENT TO THE PARTICIPATIONS PURSUANT TO THIS SECTION 2.23(D) TO
REFLECT THE NEW PRO RATA PERCENTAGES OF EACH REVOLVING CREDIT LENDER.
(E)
IF AN ISSUING BANK SHALL MAKE ANY L/C DISBURSEMENT IN RESPECT OF A
LETTER OF CREDIT, THE BORROWER SHALL PAY TO THE ADMINISTRATIVE AGENT AN AMOUNT
EQUAL TO SUCH L/C DISBURSEMENT NOT LATER THAN 12:00 NOON ON THE SECOND BUSINESS
DAY FOLLOWING THE DAY THE BORROWER RECEIVES NOTICE OF SUCH L/C DISBURSEMENT.
(F)
(I)
THE BORROWER'S OBLIGATIONS TO REIMBURSE L/C DISBURSEMENTS AS
PROVIDED IN PARAGRAPH (E) ABOVE SHALL BE ABSOLUTE, UNCONDITIONAL AND
IRREVOCABLE, AND SHALL BE PERFORMED STRICTLY IN ACCORDANCE WITH THE TERMS OF
THIS AGREEMENT, UNDER ANY AND ALL CIRCUMSTANCES WHATSOEVER, AND IRRESPECTIVE OF
THE EXISTENCE OF ANY CLAIM, SETOFF, DEFENSE OR OTHER RIGHT THAT THE BORROWER OR
ANY OTHER PERSON MAY AT ANY TIME HAVE AGAINST THE BENEFICIARY UNDER ANY LETTER
OF CREDIT, THE ISSUING BANK, THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY