OR DISBURSED BY THE LETTER OF CREDIT ISSUER, TO THE EXTENT NOT
REIMBURSED PRIOR TO 5:00 P.M. (NEW YORK TIME) ON THE DATE OF SUCH PAYMENT OR
DISBURSEMENT, FROM AND INCLUDING THE DATE PAID OR DISBURSED TO BUT EXCLUDING THE
DATE THE LETTER OF CREDIT ISSUER IS REIMBURSED THEREFOR AT A RATE PER ANNUM THAT
SHALL AT ALL TIMES BE THE ABR MARGIN PLUS THE ABR AS IN EFFECT FROM TIME TO
TIME, PROVIDED THAT, NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE
CONTRARY, (I) UNLESS THE BORROWER SHALL HAVE NOTIFIED THE ADMINISTRATIVE AGENT
AND THE LETTER OF CREDIT ISSUER PRIOR TO 10:00 A.M. (NEW YORK TIME) ON THE DATE
OF SUCH DRAWING THAT THE BORROWER INTENDS TO REIMBURSE THE LETTER OF CREDIT
ISSUER FOR THE AMOUNT OF SUCH DRAWING WITH FUNDS OTHER THAN THE PROCEEDS OF
53
LOANS, THE BORROWER BE SHALL BE DEEMED TO HAVE GIVEN A NOTICE OF BORROWING
REQUESTING THAT THE LENDERS WITH COMMITMENTS MAKE REVOLVING CREDIT LOANS (WHICH
SHALL BE ABR LOANS) ON THE DATE ON WHICH SUCH DRAWING IS HONORED IN AN AMOUNT
EQUAL TO THE AMOUNT OF SUCH DRAWING AND (II) THE ADMINISTRATIVE AGENT SHALL
PROMPTLY NOTIFY EACH RELEVANT L/C PARTICIPANT OF SUCH DRAWING AND THE AMOUNT OF
ITS REVOLVING CREDIT LOAN TO BE MADE IN RESPECT THEREOF, AND, SUBJECT TO THE
CONDITIONS SET FORTH IN SECTION 2.1(A), EACH L/C PARTICIPANT SHALL BE
IRREVOCABLY OBLIGATED TO MAKE A REVOLVING CREDIT LOAN TO THE BORROWER IN THE
MANNER DEEMED TO HAVE BEEN REQUESTED IN THE AMOUNT OF ITS APPLICABLE PERCENTAGE
OF THE APPLICABLE UNPAID DRAWING BY 12:00 NOON (NEW YORK TIME) ON SUCH BUSINESS
DAY BY MAKING THE AMOUNT OF SUCH REVOLVING CREDIT LOAN AVAILABLE TO THE
ADMINISTRATIVE AGENT.
SUCH REVOLVING CREDIT LOANS SHALL BE MADE WITHOUT REGARD
TO THE MINIMUM BORROWING AMOUNT FOR ABR LOANS SET FORTH IN SECTION 2.2.
THE
ADMINISTRATIVE AGENT SHALL USE THE PROCEEDS OF SUCH REVOLVING CREDIT LOANS
SOLELY FOR PURPOSE OF REIMBURSING THE LETTER OF CREDIT ISSUER FOR THE RELATED
UNPAID DRAWING.
(B)
THE OBLIGATIONS OF THE BORROWER UNDER THIS
SECTION 3.4 TO REIMBURSE THE 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 SET-OFF,
COUNTERCLAIM OR DEFENSE TO PAYMENT THAT THE BORROWER OR ANY OTHER PERSON MAY
HAVE OR HAVE HAD AGAINST THE LETTER OF CREDIT ISSUER, THE ADMINISTRATIVE AGENT
OR ANY LENDER (INCLUDING IN ITS CAPACITY AS AN L/C PARTICIPANT), INCLUDING ANY
DEFENSE BASED UPON THE FAILURE OF ANY DRAWING UNDER A LETTER OF CREDIT (EACH A
"DRAWING") TO CONFORM 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 THE
LETTER OF CREDIT ISSUER FOR ANY WRONGFUL PAYMENT MADE BY THE LETTER OF CREDIT
ISSUER UNDER THE LETTER OF CREDIT ISSUED BY IT AS A RESULT OF ACTS OR OMISSIONS
CONSTITUTING WILLFUL