Common use of Disbursement and Reimbursement Clause in Contracts

Disbursement and Reimbursement. (a) Promptly after it shall have ascertained that any draft and any accompanying documents presented under a Letter of Credit appear to be in conformity with the terms and conditions of such Letter of Credit, the Lender shall give written or telecopy notice to the Borrower of the receipt and amount of such draft and the date on which payment thereon will be made. (b) If the Lender shall pay any draft presented under a Letter of Credit, the Borrower shall pay to the Lender an amount equal to the amount of such draft before 10:00 a.m., Arizona time, on the Business Day immediately following the date of payment of such draft, together with interest on such amount at a rate per annum equal to the interest rate in effect for Base Rate Borrowings from (and including) the date of payment of such draft to (but excluding) the date of such payment by the Borrower. The obligation of the Borrower to pay the amounts referred to above in this paragraph (b) shall be absolute, unconditional and irrevocable and shall be satisfied strictly in accordance with their terms irrespective of: (i) any lack of validity or enforceability of any Letter of Credit; (ii) the existence of any claim, setoff, defense or other right which the Borrower or any other Person may at any time have against the beneficiary under any Letter of Credit or the Lender (other than the defense of payment in accordance with the terms of this Agreement or a defense based on the gross negligence or willful misconduct of the Lender) or any other Person in connection with this Agreement or any other transaction; (iii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect; provided that payment by the Lender under such Letter of Credit against presentation of such draft or document shall not have constituted gross negligence or willful misconduct; (iv) payment by the Lender under a Letter of Credit against presentation of a draft or other document which does not comply in any immaterial respect with the terms of such Letter of Credit; provided that such payment shall not have constituted gross negligence or willful misconduct; or (v) any other circumstance or event whatsoever, whether or not similar to any of the foregoing; provided that such other circumstance or event shall not have been the result of gross negligence or willful misconduct of the Lender. It is understood that in making any payment under a Letter of Credit (1) the Lender's exclusive reliance on the documents presented to it under such Letter of Credit as to any and all matters set forth therein, including without limitation, reliance on the amount of any draft presented under such Letter of Credit, whether or not the amount due to the beneficiary equals the amount of such draft and whether or not any document presented pursuant to such Letter of Credit proves to be forged, fraudulent or invalid in any respect, if such document on its face appears to be in order, and whether or not any other statement or any other document presented pursuant to such Letter of Credit proves to be forged or invalid or any statement therein proves to be inaccurate or untrue in any respect whatsoever, and (2) any noncompliance in any immaterial respect of the documents presented under a Letter of Credit with the terms thereof shall, in either case, not be deemed willful misconduct or gross negligence of the Lender.

Disbursement and Reimbursement. (a) Promptly after it shall have ascertained that any draft and any accompanying documents presented under a Letter of Credit appear to be in strict conformity with the terms and conditions of such Letter of Credit, the Lender Issuing Bank shall give written or telephone and telecopy notice to the Borrower and the Administrative Agent of the receipt and amount of such draft and the date on which payment thereon will be made; upon receipt thereof, the Administrative Agent shall provide to each Bank a copy of such notice by telecopy. If the Administrative Agent shall not have received from the Borrower the payment required pursuant to paragraph (b) below before 9:30 a.m., Arizona time, on the -9- second Business Day (the "Payment Date") immediately following the date of payment of a draft presented under any Letter of Credit, the Administrative Agent shall, prior to 11:00 a.m., Arizona time, on the Payment Date, so notify the Issuing Bank and each Bank, specifying in the notice to each Bank such Bank's pro rata percentage, based upon the Commitments, of such Letter of Credit Disbursement. Each Bank shall pay to the Administrative Agent, not later than 11:00 a.m., Arizona time, on the Business Day immediately following the Payment Date, such Bank's percentage of such Letter of Credit Disbursement, which the Administrative Agent shall promptly pay to the Issuing Bank. The Administrative Agent will remit to each Bank such Bank's percentage of any amounts subsequently received by the Administrative Agent from the Borrower in respect of such Letter of Credit Disbursement in accordance with the requirements contained in Section 8.3(d) with respect to other distributions by the Administrative Agent to the Banks; provided that (i) amounts so received for the account of any Bank prior to payment by such Bank of amounts required to be paid by it hereunder in respect of any Letter of Credit Disbursement and (ii) amounts representing interest on any Letter of Credit Disbursement for the period prior to the payment by such Bank of such amounts shall in each case be remitted to the Issuing Bank. (b) If the Lender Issuing Bank shall pay any draft presented under a Letter of Credit, the Borrower shall pay to the Lender Issuing Bank or to the Administrative Agent for the account of the Issuing Bank or, if the Administrative Agent shall have received the payments provided in paragraph (a) above with respect to such drawing, for the accounts of the Banks, an amount equal to the amount of such draft before 10:00 9:30 a.m., Arizona time, on the second Business Day immediately following the date of payment of such draft, together with interest on such amount at a rate per annum equal to the interest rate in effect for Base Variable Rate Borrowings Loans from (and including) the date of payment of such draft to (but excluding) the date of such payment by the Borrower. The obligation of the Borrower to pay the amounts referred to above in this paragraph (b) shall be absolute, unconditional and irrevocable and shall be satisfied strictly in accordance with their terms irrespective of: (i) any lack of validity or enforceability of any Letter of Credit; (ii) the existence of any claim, setoff, defense or other right which the Borrower or any other Person may at any time have against the beneficiary under any Letter of Credit Credit, the Administrative Agent, any Issuing Bank or the Lender any Bank (other than the defense of payment in accordance with the terms of this Credit Agreement or a defense based on the gross negligence or willful wilful misconduct of the LenderIssuing Bank) or any other Person in connection -10- with this Credit Agreement or any other transaction; (iii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect; provided that payment by the Lender Issuing Bank under such Letter of Credit against presentation of such draft or document shall not have constituted gross negligence or willful wilful misconduct; (iv) payment by the Lender Issuing Bank under a Letter of Credit against presentation of a draft or other document which does not comply in any immaterial respect with the terms of such Letter of Credit; provided that such payment shall not have constituted gross negligence or willful wilful misconduct; or (v) any other circumstance or event whatsoever, whether or not similar to any of the foregoing; provided that such other circumstance or event shall not have been the result of gross negligence or willful wilful misconduct of the LenderIssuing Bank. It is understood that in making any payment under a Letter of Credit (1) the LenderIssuing Bank's exclusive reliance on the documents presented to it under such Letter of Credit as to any and all matters set forth therein, including without limitation, reliance on the amount of any draft presented under such Letter of Credit, whether or not the amount due to the beneficiary equals the amount of such draft and whether or not any document presented pursuant to such Letter of Credit proves to be forged, fraudulent or invalid in any respect, if such document on its face appears to be in order, and whether or not any other statement or any other document presented pursuant to such Letter of Credit proves to be forged or invalid or any statement therein proves to be inaccurate or untrue in any respect whatsoever, and (2) any noncompliance in any immaterial respect of the documents presented under a Letter of Credit with the terms thereof shall, in either case, not be deemed willful wilful misconduct or gross negligence of the LenderIssuing Bank. 2.1.9 Section 7.2 of the Credit Agreement is hereby modified by the addition of the following paragraph (f):

Disbursement and Reimbursement. (a) Promptly after it shall have ascertained that any draft and any accompanying documents presented under a Letter of Credit appear to be in conformity with the terms and conditions of such Letter of Credit, the Lender Issuing Bank shall give written or telecopy notice to the Borrower and the Administrative Agent of the receipt and amount of such draft and the date on which payment thereon will be made. If the Administrative Agent shall not have received from the Borrower the payment required pursuant to paragraph (b) below by 10:00 a.m., Arizona time, one Business Day after the date on which payment of a draft presented under any Letter of Credit has been made, the Administrative Agent shall promptly so notify the Issuing Bank and each Bank, specifying in the notice to each Bank such Bank's pro rata percentage, based upon the RLC Commitments, of such Letter of Credit Disbursement. Each Bank shall pay to the Administrative Agent, not later than 1:00 p.m., Arizona time, on such date, such Bank's percentage of such Letter of Credit Disbursement, which the Administrative Agent shall promptly pay to the Issuing Bank. The Administrative Agent will promptly remit to each Bank such Bank's percentage of any amounts subsequently received by the Administrative Agent from the Borrower in respect of such Letter of Credit Disbursement; PROVIDED that (i) amounts so received for the account of any Bank prior to payment by such Bank of amounts required to be paid by it hereunder in respect of any Letter of Credit Disbursement and (ii) amounts representing interest on any Letter of Credit Disbursement for the period prior to the payment by such Bank of such amounts shall in each case be remitted to the Issuing Bank. (b) If the Lender Issuing Bank shall pay any draft presented under a Letter of Credit, the Borrower shall pay to the Lender Issuing Bank or to the administrative Agent for the account of the Issuing Bank or, if the Administrative Agent shall have received the payments provided in paragraph (a) above with respect to such drawing, for the accounts of the Banks, an amount equal to the amount of such draft before 10:00 a.m., Arizona time, on the Business Day immediately following the date of payment of such draft, together with interest on such amount at a rate per annum equal to the interest rate in effect for Base Rate Borrowings from (and including) the date of payment of such draft to (but excluding) the date of such payment by the Borrower. The obligation of the Borrower to pay the amounts referred to above in this paragraph (b) shall be absolute, unconditional and irrevocable and shall be satisfied strictly in accordance with their terms irrespective of: (i) any lack of validity or enforceability of any Letter of Credit; (ii) the existence of any claim, setoff, defense or other right which the Borrower or any other Person may at any time have against the beneficiary under any Letter of Credit Credit, the Administrative Agent, any Issuing Bank or the Lender any Bank (other than the defense of payment in accordance with the terms of this Agreement or a defense based on the gross negligence or willful misconduct of the LenderIssuing Bank) or any other Person in connection with this Agreement or any other transaction; (iii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect; provided PROVIDED that payment by the Lender Issuing Bank under such Letter of Credit against presentation of such draft or document shall not have constituted gross negligence or willful misconduct; (iv) payment by the Lender Issuing Bank under a Letter of Credit against presentation of a draft or other document which does not comply in any immaterial respect with the terms of such Letter of Credit; provided PROVIDED that such payment shall not have constituted gross negligence or willful misconduct; or (v) any other circumstance or event whatsoever, whether or not similar to any of the foregoing; provided PROVIDED that such other circumstance or event shall not have been the result of gross negligence or willful misconduct of the LenderIssuing Bank. It is understood that in making any payment under a Letter of Credit (1) the LenderIssuing Bank's exclusive reliance on the documents presented to it under such Letter of Credit as to any and all matters set forth therein, including without limitation, reliance on the amount of any draft presented under such Letter of Credit, whether or not the amount due to the beneficiary equals the amount of such draft and whether or not any document presented pursuant to such Letter of Credit proves to be forged, fraudulent or invalid in any respect, if such document on its face appears to be in order, and whether or not any other statement or any other document presented pursuant to such Letter of Credit proves to be forged or invalid or any statement therein proves to be inaccurate or untrue in any respect whatsoever, and (2) any noncompliance in any immaterial respect of the documents presented under a Letter of Credit with the terms thereof shall, in either case, not be deemed willful misconduct or gross negligence of the LenderIssuing Bank.