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This excerpt taken from the FL 8-K filed May 21, 2008. Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the applicable LC Agent, the Company shall not be required to make a specific request to such LC Agent for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Banks shall be deemed to have authorized (but may not require) the applicable LC Agent at any time to permit the extension of such Letter of Credit to an expiry date not later than the LC Termination Date; provided that the LC Agent shall not permit any such extension if the LC Agent
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has received notice in writing on or before the day that is one Domestic Business Day before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Banks have elected not to permit such extension or (2) from the Administrative Agent, any Bank or the Company that one or more of the applicable conditions specified in clause (c), (d) or (e) of Section 3.03 is not then satisfied, and in each such case directing the LC Agent not to permit such extension. (f) [Reserved] (g) Fees. The Company shall pay to the Administrative Agent, for the account of the Banks ratably in accordance with their respective Pro Rata Shares, a letter of credit fee for each day at the LC Fee Rate on the aggregate amount available for drawings (whether or not conditions for drawing thereunder have been satisfied) under all Letters of Credit outstanding on such day. Such letter of credit fee shall be payable quarterly in arrears on the last Domestic Business Day of each June, September, December and March and on the LC Termination Date (or any earlier date on which the Commitments shall have terminated in their entirety and no Letters of Credit are outstanding). Promptly upon receiving any payment of such fee, the Administrative Agent will distribute to each Bank its Pro Rata Share thereof. In addition, the Company shall pay to each LC Agent for its own account fronting fees and reasonable expenses in the amounts and at the times agreed between the Company and such LC Agent. (h) Drawings. Upon receipt from the beneficiary of any Letter of Credit of a demand for payment under such Letter of Credit, the applicable LC Agent shall determine in accordance with the terms of such Letter of Credit whether such demand for payment should be honored. If such LC Agent determines that any such demand for payment should be honored, such LC Agent shall make available to such beneficiary in accordance with the terms of such Letter of Credit the amount of the drawing under such Letter of Credit. Such LC Agent shall thereupon notify the Company and the Administrative Agent of the amount of such drawing paid by it. (i) Reimbursement and Other Payments by the Borrower. (1) If any amount is drawn under any Letter of Credit, the Borrower irrevocably and unconditionally agrees to reimburse the applicable LC Agent (through the Administrative Agent) for all amounts paid by such LC Agent upon such drawing, together with any and all reasonable charges and expenses which such LC Agent may pay or incur relative to such drawing and interest on the amount drawn at the Federal Funds Rate for each day from and including the date such amount is drawn to but excluding the date such reimbursement payment is due and payable. Such reimbursement payment shall be due and payable (x) at or before 1:00 P.M. (New York City time) on the date the LC Agent notifies the Borrower of such drawing, if such notice is given at or before 11:00 A.M. (New York City time) on
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such date, or (y) at or before 11:00 A.M. (New York City time) on the first Domestic Business Day after the date such notice is given, if such notice is given after 11:00 A.M. (New York City time) on such date; provided that no payment otherwise required by this sentence to be made by the Borrower at or before 1:00 P.M. (New York City time) on any day shall be overdue hereunder if arrangements for such payment satisfactory to the applicable LC Agent and the Administrative Agent, in their reasonable discretion, shall have been made by the Borrower at or before 1:00 P.M. (New York City time) on such day and such payment is actually made at or before 3:00 P.M. (New York City time) on such day. (2) In addition, the Borrower agrees to pay to each LC Agent (through the Administrative Agent) interest on any and all amounts not paid by the Borrower when due hereunder with respect to a Letter of Credit issued by such LC Agent, for each day from and including the date when such amount becomes due to but excluding the date such amount is paid in full, whether before or after judgment, payable on demand, at a rate per annum equal to the sum of 2% plus the rate applicable to Base Rate Loans for such day. (3) Each payment to be made by the Company or any Borrower pursuant to this subsection (i) shall be made to the Administrative Agent for the account of the applicable LC Agent in Federal or other funds immediately available to it at its address referred to in Section 9.01. (j) Payments by Banks with Respect to Letters of Credit. (1) If the Borrower fails to reimburse any LC Agent as and when required by subsection (i) above for all or any portion of any amount drawn under a Letter of Credit, the Administrative Agent shall promptly notify each Bank of such unreimbursed amount and request that each Bank reimburse such LC Agent for such Bank’s Pro Rata Share thereof. Upon receiving such notice from the Administrative Agent, each Bank shall make available to the Administrative Agent, for the account of such LC Agent at its address referred to in Section 9.01, an amount equal to such Bank’s Pro Rata Share of such unreimbursed amount as set forth in such notice, in Federal or other funds immediately available to such LC Agent, by 3:00 P.M. (New York City time) on the Domestic Business Day following such Bank’s receipt of such notice from the Administrative Agent, together with interest on such amount for each day from and including the date of such drawing to but excluding the day payment is due from such Bank at the Federal Funds Rate for such day. Upon payment in full thereof, such Bank shall be subrogated to the rights of such LC Agent against the Borrower to the extent of such Bank’s Pro Rata Share of the related Reimbursement Obligation (including interest accrued thereon). Nothing in this subsection (j) shall affect any rights any Bank may have
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against any LC Agent for any action or omission for which such LC Agent is not indemnified under subsection (n) of this Section. (2) If any Bank fails to pay any amount required to be paid by it pursuant to clause (1) of this subsection (j) on the date on which such payment is due, interest shall accrue on such Bank’s obligation to make such payment, for each day from and including the date such payment became due to but excluding the date such Bank makes such payment, whether before or after judgment, at a rate per annum equal to the Federal Funds Rate for such day. Any payment made by any Bank after 3:00 P.M. (New York City time) on any Domestic Business Day shall be deemed for purposes of the preceding sentence to have been made on the next succeeding Domestic Business Day. (3) If the Borrower shall reimburse any LC Agent for any drawing with respect to which any Bank shall have made funds available to such LC Agent in accordance with clause (1) of this subsection (j), such LC Agent shall promptly upon receipt of such reimbursement distribute to the Administrative Agent for the account of such Bank its Pro Rata Share thereof, including interest, to the extent received by such LC Agent. (k) Exculpatory Provisions. Each Borrower’s obligations under this Section shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment which the Borrower may have or have had against any LC Agent, any Bank, the beneficiary of any Letter of Credit or any other Person. The Borrower assumes all risks of the acts or omissions of any beneficiary of any Letter of Credit with respect to its use of such Letter of Credit. To the fullest extent permitted under applicable law, none of the LC Agents, the Banks and their respective officers, directors, employees and agents shall be responsible for, and the obligations of each Bank to make payments to any LC Agent and of the Borrower to reimburse any LC Agent for drawings pursuant to this Section (other than obligations resulting solely from the gross negligence or willful misconduct of such LC Agent) shall not be excused or affected by, among other things, (i) the use which may be made of any Letter of Credit or any acts or omissions of any beneficiary or transferee in connection therewith; (ii) the validity, sufficiency or genuineness of documents presented under any Letter of Credit or of any endorsements thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged (and notwithstanding any assertion to such effect by the Borrower); (iii) payment by any LC Agent against presentation of documents to it which do not comply with the terms of the relevant Letter of Credit; (iv) any dispute between or among the Borrower or the Company or any of its other Subsidiaries, the beneficiary of any Letter of Credit or any other Person or any claims or defenses whatsoever of the Borrower or any other Person against the beneficiary of any Letter of Credit; (v) any adverse change in the business,
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operations, properties, assets, condition (financial or otherwise) or prospects of the Borrower or the Company and its Subsidiaries taken as a whole; (vi) any breach of this Agreement by any party hereto (except, in the case of any LC Agent, a breach resulting solely from its gross negligence or willful misconduct); (vii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing; (viii) the fact that a Default shall have occurred and be continuing; or (ix) the fact that the Termination Date shall have passed or the Commitments shall have terminated. The LC Agents shall not be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit. To the fullest extent permitted under applicable law, any action taken or omitted by the LC Agents or any Bank under or in connection with any Letter of Credit and the related drafts and documents, if done without willful misconduct or gross negligence, shall be binding upon the Borrower and shall not place any LC Agent or any Bank under any liability to the Borrower. (l) Reliance, Etc. Each LC Agent shall be entitled (but not obligated) to rely, and shall be fully protected in relying, on the representation and warranty by the Company set forth in the last sentence of Section 3.03 to establish whether the conditions specified in clauses (c), (d) and (e) of Section 3.03 are met in connection with any issuance or extension of a Letter of Credit by it, unless such LC Agent shall have been notified to the contrary by the Administrative Agent or the Required Banks (in which event such LC Agent shall be fully protected in relying on such notice). Unless otherwise expressly agreed by the applicable LC Agent and the Company when a Letter of Credit is issued, the rights and obligations of each LC Agent under each Letter of Credit issued by it shall be governed by the provisions thereof and the provisions of (i) with respect to standby Letters of Credit, the ISP and (ii) with respect to commercial Letters of Credit, the UCP and/or (in each case) the Uniform Commercial Code referred to therein or otherwise applicable thereto. (m) Indemnification by the Borrower. The Borrower agrees to indemnify and hold harmless each Bank, each LC Agent and their Related Parties (collectively, the “ |
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