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This excerpt taken from the CVS 8-K filed Mar 23, 2007. Letter
of Credit
Participation
(a) Each Lender
hereby unconditionally and
irrevocably, severally (and not jointly) takes an undivided participating
interest in the obligations of the Issuer under and in connection with each
Letter of Credit in an amount equal to such Lender’s Commitment Percentage of
the amount of such Letter of Credit. Each Lender shall be liable to the Issuer
for its Commitment Percentage of the unreimbursed amount of any draft drawn
and
honored under each Letter of Credit. Each Lender shall also be liable for an
amount equal to the product of its Commitment Percentage and any amounts paid
by
the Borrower pursuant to Sections 2.8 and 2.10 that are subsequently rescinded
or avoided, or must otherwise be restored or returned. Such liabilities shall
be
unconditional and without regard to the occurrence of any Default or Event
of
26 Default or the
compliance by the Borrower with any of its obligations under the Loan
Documents.
(b) The Issuer
shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify each
Lender (which notice shall be promptly confirmed in writing), of the date and
the amount of each draft paid under each Letter of Credit with respect to which
full reimbursement payment shall not have been made by the Borrower as provided
in Section 2.8(c), and forthwith upon receipt of such notice, such Lender shall
promptly make available to the Administrative Agent for the account of the
Issuer its Commitment Percentage of the amount of such unreimbursed draft at
the
office of the Administrative Agent specified in Section 11.2 in lawful money
of
the United States and in immediately available funds. The Administrative Agent
shall distribute the payments made by each Lender pursuant to the immediately
preceding sentence to the Issuer promptly upon receipt thereof in like funds
as
received. Each Lender shall indemnify and hold harmless the Administrative
Agent
and the Issuer from and against any and all losses, liabilities (including
liabilities for penalties), actions, suits, judgments, demands, costs and
expenses (including, without limitation, reasonable attorneys’ fees and
expenses) resulting from any failure on the part of such Lender to provide,
or
from any delay in providing, the Administrative Agent with such Lender’s
Commitment Percentage of the amount of any payment made by the Issuer under
a
Letter of Credit in accordance with this clause (b) above (except in respect
of
losses, liabilities or other obligations suffered by the Administrative Agent
or
the Issuer, as the case may be, resulting from the gross negligence or willful
misconduct of the Administrative Agent or the Issuer, as the case may be).
If a
Lender does not make available to the Administrative Agent when due such
Lender’s Commitment Percentage of any unreimbursed payment made by the Issuer
under a Letter of Credit, such Lender shall be required to pay interest to
the
Administrative Agent for the account of the Issuer on such Lender’s Commitment
Percentage of such payment at a rate of interest per annum equal to (i) from
the
date such Lender should have made such amount available until the third day
therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal
Funds Effective Rate plus
2%, in each case
payable upon demand by the Issuer. The Administrative Agent shall distribute
such interest payments to the Issuer upon receipt thereof in like funds as
received.
(c) Whenever the
Administrative Agent is
reimbursed by the Borrower, for the account of the Issuer, for any payment
under
a Letter of Credit and such payment relates to an amount previously paid by
a
Lender in respect of its Commitment Percentage of the amount of such payment
under such Letter of Credit, the Administrative Agent (or the Issuer, if such
payment by a Lender was paid by the Administrative Agent to the Issuer) will
promptly pay over such payment to such Lender.
2.10 |
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