Common use of Existing Tranche 1 Letters of Credit Clause in Contracts

Existing Tranche 1 Letters of Credit. (a) Each letter of credit issued under the Existing Credit Agreement and outstanding immediately prior to the Effective Date and which is intended to be a Tranche 1 Letter of Credit hereunder is listed in Part A of Annex VIII (each such letter of credit, an “Existing Tranche 1 Letter of Credit”). Each Existing Tranche 1 Letter of Credit shall be deemed to be a Tranche 1 Letter of Credit hereunder. As soon as possible following the Effective Date, each Existing Tranche 1 Letter of Credit shall be amended to replace each Original Lender on such Existing Tranche 1 Letter of Credit with each Tranche 1 Lender party to this Agreement on the Effective Date in accordance with each such Tranche 1 Lender’s Tranche 1 Percentage. Until an Existing Tranche 1 Letter of Credit has been amended in accordance with this Section 2A.08, each Original Lender shall be deemed to have sold and transferred to each Tranche 1 Lender and each such Tranche 1 Lender (each, a “Tranche 1 Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Original Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Tranche 1 Participant’s Tranche 1 Percentage in such Existing Tranche 1 Letter of Credit, each substitute Existing Tranche 1 Letter of Credit, each drawing made thereunder, the obligations of any Borrower under this Agreement with respect thereto and any security therefore or guaranty pertaining thereto. Upon any change in the Tranche 1 Commitments of the Tranche 1 Lenders pursuant to Section 1.13 or 12.04(b), it is hereby agreed that, with respect to all outstanding Existing Tranche 1 Letters of Credit and Unpaid Drawings with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2A.08 to reflect the new Tranche 1 Percentages of the assigning and assignee Tranche 1 Lender. (b) In determining whether to pay under any Existing Tranche 1 Letter of Credit, no Original Lender shall have any obligation relative to the Tranche 1 Participants other than to determine that any documents required to be delivered under such Existing Tranche 1 Letter of Credit have been delivered and that they appear to substantially comply on their face with the requirements of such Existing Tranche 1 Letter of Credit, which obligation, it is understood, is being performed by the Issuing Agent, and upon whom each Original Lender shall be entitled to rely. Any action taken or omitted to be taken by any Original Lender under or in connection with any Existing Tranche 1 Letter of Credit issued by it shall not create for such Original Lender any resulting liability to any Borrower, any Tranche 1 Lender or any other Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision). (c) In the event that any Original Lender makes any payment under any Existing Tranche 1 Letter of Credit issued by it and the respective Borrower shall not have reimbursed such amount in full to each Original Lender pursuant to Section 2A.03(a), such Original Lender shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Tranche 1 Participant of such failure, and each such Tranche 1 Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Original Lender, the amount of such Tranche 1 Participant’s Tranche 1 Percentage of such payment in Dollars and in same day funds. If the Administrative Agent so notifies any Tranche 1 Participant required to fund a payment under an Existing Tranche 1 Letter of Credit prior to 11:00 A.M. (New York time) on any Business Day, such Tranche 1 Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Original Lender such Tranche 1 Participant’s Tranche 1 Percentage of the amount of such payment on such Business Day in same day funds (and, to the extent such notice is given after 11:00 A.M. (New York time) on any Business Day, such Tranche 1 Participant shall make such payment on the immediately following Business Day). If and to the extent such Tranche 1 Participant shall not make its Tranche 1 Percentage of the amount of such payment available to the Administrative Agent for the account of the respective Original Lender on the same Business Day, such Tranche 1 Participant agrees to pay to the Administrative Agent for the account of such Original Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Original Lender at the overnight Federal Funds Rate for the first three days from the date when due and at the interest rate applicable to Tranche 1 Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Tranche 1 Participant to make available to the Administrative Agent for the account of the respective Original Lender its Tranche 1 Percentage of any payment under any Existing Tranche 1 Letter of Credit issued by it shall not relieve any other Tranche 1 Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Original Lender its Tranche 1 Percentage of any payment under any such Tranche 1 Letter of Credit on the date required, as specified above, but no Tranche 1 Participant shall be responsible for the failure of any other Tranche 1 Participant to make available to the Administrative Agent for the account of such Original Lender such other Tranche 1 Participant’s Tranche 1 Percentage of any such payment. (d) Whenever any Original Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Original Lender any payments from the Tranche 1 Participants pursuant to Section 2A.08(c), such Original Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Tranche 1 Participant which has paid its Tranche 1 Percentage thereof, in Dollars and in same day funds, an amount equal to such Tranche 1 Participant’s Tranche 1 Percentage thereof. (e) The obligations of the Tranche 1 Participants to make payments to the Administrative Agent for the account of the respective Original Lender with respect to Existing Tranche 1 Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances: (i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents; (ii) the existence of any claim, set-off, defense or other right which the Parent Borrower or any of its Subsidiaries may have at any time against a beneficiary named in an Existing Tranche 1 Letter of Credit, any transferee of any Existing Tranche 1 Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Original Lender, or other Person, whether in connection with this Agreement, any Existing Tranche 1 Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Parent Borrower or any of its Subsidiaries and the beneficiary named in any such Existing Tranche 1 Letter of Credit); (iii) any draft, certificate or other document presented under the Existing Tranche 1 Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or (v) the occurrence of any Default or Event of Default.

Existing Tranche 1 Letters of Credit. (a) Each letter of credit issued under the Existing Credit Agreement and outstanding immediately prior to the Effective Date and which is intended to be a Tranche 1 Letter of Credit hereunder is listed in Part A of Annex VIII VII (each such letter of credit, an “Existing Tranche 1 Letter of Credit”). Each Existing Tranche 1 Letter of Credit shall be deemed to be a Tranche 1 Non-Fronted Letter of Credit hereunder. As soon as possible following the Effective Date, each Existing Tranche 1 Letter of Credit shall be amended to replace each Original Lender on such Existing Tranche 1 Letter of Credit with each Tranche 1 Lender party to this Agreement on the Effective Date (subject to the provisions in this Agreement regarding Limited Fronting Lenders) in accordance with each such Tranche 1 Lender’s Tranche 1 Percentage. Until an Existing Tranche 1 Letter of Credit has been amended in accordance with this Section 2A.08, each Original Lender shall be deemed to have sold and transferred to each Tranche 1 Lender and each such Tranche 1 Lender (each, a “Tranche 1 Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Original Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Tranche 1 Participant’s Tranche 1 Percentage in such Existing Tranche 1 Letter of Credit, each substitute Existing Tranche 1 Letter of Credit, each drawing made thereunder, the obligations of any Borrower under this Agreement with respect thereto and any security therefore or guaranty pertaining thereto. Upon any change in the Tranche 1 Commitments of the Tranche 1 Lenders pursuant to Section 1.13 or 12.04(b), it is hereby agreed that, with respect to all outstanding Existing Tranche 1 Letters of Credit and Unpaid Drawings with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2A.08 to reflect the new Tranche 1 Percentages of the assigning and assignee Tranche 1 Lender. Notwithstanding anything herein to the contrary, upon receipt of any payment or disbursement request with respect to any Existing Tranche 1 Letter of Credit, the Issuing Agent shall notify the Tranche 1 Lenders of such request and the Tranche 1 Lenders hereby agree to fund such request on behalf the Original Lenders in accordance with their Tranche 1 Percentages and otherwise in accordance with the terms hereof as though such Existing Tranche 1 Letter of Credit had been issued by the Issuing Agent hereunder on behalf of the Tranche 1 Lenders. Notwithstanding the foregoing, in the event that any payment or disbursement under an Existing Tranche 1 Letter of Credit is in fact funded by an Original Lender, the following sections (b), (c) and (d) shall apply. (b) In determining whether to pay under any Existing Tranche 1 Letter of Credit, no Original Lender shall have any obligation relative to the Tranche 1 Participants other than to determine that any documents required to be delivered under such Existing Tranche 1 Letter of Credit have been delivered and that they appear to substantially comply on their face with the requirements of such Existing Tranche 1 Letter of Credit, which obligation, it is understood, is being performed by the Issuing Agent, and upon whom each Original Lender shall be entitled to rely. Any action taken or omitted to be taken by any Original Lender under or in connection with any Existing Tranche 1 Letter of Credit issued by it shall not create for such Original Lender any resulting liability to any Borrower, any Tranche 1 Lender or any other Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision). (c) In the event that any Original Lender makes any payment under any Existing Tranche 1 Letter of Credit issued by it and the respective Borrower shall not have reimbursed such amount in full to each Original Lender pursuant to Section 2A.03(a), such Original Lender shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Tranche 1 Participant of such failure, and each such Tranche 1 Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Original Lender, the amount of such Tranche 1 Participant’s Tranche 1 Percentage of such payment in Dollars and in same day funds. If the Administrative Agent so notifies any Tranche 1 Participant required to fund a payment under an Existing Tranche 1 Letter of Credit prior to 11:00 A.M. (New York time) on any Business Day, such Tranche 1 Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Original Lender such Tranche 1 Participant’s Tranche 1 Percentage of the amount of such payment on such Business Day in same day funds (and, to the extent such notice is given after 11:00 A.M. (New York time) on any Business Day, such Tranche 1 Participant shall make such payment on the immediately following Business Day). If and to the extent such Tranche 1 Participant shall not make its Tranche 1 Percentage of the amount of such payment available to the Administrative Agent for the account of the respective Original Lender on the same Business Day, such Tranche 1 Participant agrees to pay to the Administrative Agent for the account of such Original Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Original Lender at the overnight Federal Funds Effective Rate for the first three (3) days from the date when due and at a rate per annum which shall be the interest rate applicable to Tranche 1 Revolving Loans that are maintained as Base Rate Loans as in effect from time to time for each day thereafter. The failure of any Tranche 1 Participant to make available to the Administrative Agent for the account of the respective Original Lender its Tranche 1 Percentage of any payment under any Existing Tranche 1 Letter of Credit issued by it shall not relieve any other Tranche 1 Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Original Lender its Tranche 1 Percentage of any payment under any such Tranche 1 Letter of Credit on the date required, as specified above, but no Tranche 1 Participant shall be responsible for the failure of any other Tranche 1 Participant to make available to the Administrative Agent for the account of such Original Lender such other Tranche 1 Participant’s Tranche 1 Percentage of any such payment. (d) Whenever any Original Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Original Lender any payments from the Tranche 1 Participants pursuant to Section 2A.08(c), such Original Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Tranche 1 Participant which has paid its Tranche 1 Percentage thereof, in Dollars and in same day funds, an amount equal to such Tranche 1 Participant’s Tranche 1 Percentage thereof. (e) The obligations of the Tranche 1 Participants to make payments to the Administrative Agent for the account of the respective Original Lender with respect to Existing Existing Tranche 1 Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances: (i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents; (ii) the existence of any claim, set-off, defense or other right which the Parent Borrower or any of its Subsidiaries may have at any time against a beneficiary named in an Existing Tranche 1 Letter of Credit, any transferee of any Existing Tranche 1 Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Original Lender, or other Person, whether in connection with this Agreement, any Existing Tranche 1 Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Parent Borrower or any of its Subsidiaries and the beneficiary named in any such Existing Tranche 1 Letter of Credit); (iii) any draft, certificate or other document presented under the Existing Tranche 1 Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or (v) the occurrence of any Default or Event of Default.

Existing Tranche 1 Letters of Credit. (a) Each letter of credit issued under the Existing Credit Agreement and outstanding immediately prior to the Effective Date and which is intended to be a Tranche 1 Letter of Credit hereunder is listed in Part A of Annex VIII (each such letter of credit, an “Existing Tranche 1 Letter of Credit”). Each Existing Tranche 1 Letter of Credit shall be deemed to be a Tranche 1 Letter of Credit hereunder. As soon as possible following the Effective Date, each Existing Tranche 1 Letter of Credit shall be amended to replace each Original Lender on such Existing Tranche 1 Letter of Credit with each Tranche 1 Lender party to this Agreement on the Effective Date in accordance with each such Tranche 1 Lender’s Tranche 1 Percentage. Until an Existing Tranche 1 Letter of Credit has been amended in accordance with this Section 2A.08, each Original Lender shall be deemed to have sold and transferred to each Tranche 1 Lender and each such Tranche 1 Lender (each, a “Tranche 1 Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Original Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Tranche 1 Participant’s Tranche 1 Percentage in such Existing Tranche 1 Letter of Credit, each substitute Existing Tranche 1 Letter of Credit, each drawing made thereunder, the obligations of any Borrower under this Agreement with respect thereto and any security therefore or guaranty pertaining thereto. Upon any change in the Tranche 1 Commitments of the Tranche 1 Lenders pursuant to Section 1.13 or 12.04(b), it is hereby agreed that, with respect to all outstanding Existing Tranche 1 Letters of Credit and Unpaid Drawings with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2A.08 to reflect the new Tranche 1 Percentages of the assigning and assignee Tranche 1 Lender. (b) In determining whether to pay under any Existing Tranche 1 Letter of Credit, no Original Lender shall have any obligation relative to the Tranche 1 Participants other than to determine that any documents required to be delivered under such Existing Tranche 1 Letter of Credit have been delivered and that they appear to substantially comply on their face with the requirements of such Existing Tranche 1 Letter of Credit, which obligation, it is understood, is being performed by the Issuing Agent, and upon whom each Original Lender shall be entitled to rely. Any action taken or omitted to be taken by any Original Lender under or in connection with any Existing Tranche 1 Letter of Credit issued by it shall not create for such Original Lender any resulting liability to any Borrower, any Tranche 1 Lender or any other Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision). (c) In the event that any Original Lender makes any payment under any Existing Tranche 1 Letter of Credit issued by it and the respective Borrower shall not have reimbursed such amount in full to each Original Lender pursuant to Section 2A.03(a), such Original Lender shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Tranche 1 Participant of such failure, and each such Tranche 1 Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Original Lender, the amount of such Tranche 1 Participant’s Tranche 1 Percentage of such payment in Dollars and in same day funds. If the Administrative Agent so notifies any Tranche 1 Participant required to fund a payment under an Existing Tranche 1 Letter of Credit prior to 11:00 A.M. (New York time) on any Business Day, such Tranche 1 Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Original Lender such Tranche 1 Participant’s Tranche 1 Percentage of the amount of such payment on such Business Day in same day funds (and, to the extent such notice is given after 11:00 A.M. (New York time) on any Business Day, such Tranche 1 Participant shall make such payment on the immediately following Business Day). If and to the extent such Tranche 1 Participant shall not make its Tranche 1 Percentage of the amount of such payment available to the Administrative Agent for the account of the respective Original Lender on the same Business Day, such Tranche 1 Participant agrees to pay to the Administrative Agent for the account of such Original Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Original Lender at the overnight Federal Funds Rate for the first three days from the date when due and at the interest rate applicable to Tranche 1 Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Tranche 1 Participant to make available to the Administrative Agent for the account of the respective Original Lender its Tranche 1 Percentage of any payment under any Existing Tranche 1 Letter of Credit issued by it shall not relieve any other Tranche 1 Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Original Lender its Tranche 1 Percentage of any payment under any such Tranche 1 Letter of Credit on the date required, as specified above, but no Tranche 1 Participant shall be responsible for the failure of any other Tranche 1 Participant to make available to the Administrative Agent for the account of such Original Lender such other Tranche 1 Participant’s Tranche 1 Percentage of any such payment. (d) Whenever any Original Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Original Lender any payments from the Tranche 1 Participants pursuant to Section 2A.08(c), such Original Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Tranche 1 Participant which has paid its Tranche 1 Percentage thereof, in Dollars and in same day funds, an amount equal to such Tranche 1 Participant’s Tranche 1 Percentage thereof. (e) The obligations of the Tranche 1 Participants to make payments to the Administrative Agent for the account of the respective Original Lender with respect to Existing Existing Tranche 1 Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances: (i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents; (ii) the existence of any claim, set-off, defense or other right which the Parent Borrower or any of its Subsidiaries may have at any time against a beneficiary named in an Existing Tranche 1 Letter of Credit, any transferee of any Existing Tranche 1 Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Original Lender, or other Person, whether in connection with this Agreement, any Existing Tranche 1 Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Parent Borrower or any of its Subsidiaries and the beneficiary named in any such Existing Tranche 1 Letter of Credit); (iii) any draft, certificate or other document presented under the Existing Tranche 1 Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or (v) the occurrence of any Default or Event of Default.

Existing Tranche 1 Letters of Credit. (a) Each letter of credit issued under the Existing Credit Agreement and outstanding immediately prior to the Effective Date and which is intended to be a Tranche 1 Letter of Credit hereunder is listed in Part A of Annex VIII (each such letter of credit, an “Existing Tranche 1 Letter of Credit”). Each Existing Tranche 1 Letter of Credit shall be deemed to be a Tranche 1 Letter of Credit hereunder. As soon as possible following the Effective Date, each Existing Tranche 1 Letter of Credit shall be amended to replace each Original Lender on such Existing Tranche 1 Letter of Credit with each Tranche 1 Lender party to this Agreement on the Effective Date in accordance with each such Tranche 1 Lender’s Tranche 1 Percentage. Until an Existing Tranche 1 Letter of Credit has been amended in accordance with this Section 2A.08, each Original Lender shall be deemed to have sold and transferred to each Tranche 1 Lender Lender, and each such Tranche 1 Lender (each, a “Tranche 1 Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Original Lender, without recourse or warranty, an undivided interest and participation, Back to Contents to the extent of such Tranche 1 Participant’s Tranche 1 Percentage in such Existing Tranche 1 Letter of Credit, each substitute Existing Tranche 1 Letter of Credit, each drawing made thereunder, the obligations of any Borrower under this Agreement with respect thereto and any security therefore or guaranty pertaining thereto. Upon any change in the Tranche 1 Commitments of the Tranche 1 Lenders pursuant to Section 1.13 or 12.04(b), it is hereby agreed that, with respect to all outstanding Existing Tranche 1 Letters of Credit and Unpaid Drawings with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2A.08 to reflect the new Tranche 1 Percentages of the assigning and assignee Tranche 1 Lender. (b) In determining whether to pay under any Existing Tranche 1 Letter of Credit, no Original Lender shall have any obligation relative to the Tranche 1 Participants other than to determine that any documents required to be delivered under such Existing Tranche 1 Letter of Credit have been delivered and that they appear to substantially comply on their face with the requirements of such Existing Tranche 1 Letter of Credit, which obligation, it is understood, is being performed by the Issuing Agent, and upon whom each Original Lender shall be entitled to rely. Any action taken or omitted to be taken by any Original Lender under or in connection with any Existing Tranche 1 Letter of Credit issued by it shall not create for such Original Lender any resulting liability to any Borrower, any Tranche 1 Lender or any other Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision). (c) In the event that any Original Lender makes any payment under any Existing Tranche 1 Letter of Credit issued by it and the respective Borrower shall not have reimbursed such amount in full to each Original Lender pursuant to Section 2A.03(a), such Original Lender shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Tranche 1 Participant of such failure, and each such Tranche 1 Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Original Lender, the amount of such Tranche 1 Participant’s Tranche 1 Percentage of such payment in Dollars and in same day funds. If the Administrative Agent so notifies any Tranche 1 Participant required to fund a payment under an Existing Tranche 1 Letter of Credit prior to 11:00 A.M. (New York time) on any Business Day, such Tranche 1 Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Original Lender such Tranche 1 Participant’s Tranche 1 Percentage of the amount of such payment on such Business Day in same day funds (and, to the extent such notice is given after 11:00 A.M. (New York time) on any Business Day, such Tranche 1 Participant shall make such payment on the immediately following Business Day). If and to the extent such Tranche 1 Participant shall not make have so made its Tranche 1 Percentage of the amount of such payment available to the Administrative Agent for the account of the respective Original Lender on the same Business DayLender, such Tranche 1 Participant agrees to pay to the Administrative Agent for the account of such Original Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Original Lender at the overnight Federal Funds Rate for the first three days from the date when due and at the interest rate applicable to Tranche 1 Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Tranche 1 Participant to make available to the Administrative Agent for the account of the respective Original Lender its Tranche 1 Percentage of any payment under any Existing Tranche 1 Letter of Credit issued by it shall not relieve any other Tranche 1 Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Original Lender its Tranche 1 Percentage of any payment under any such Tranche 1 Letter of Credit on the date required, as specified above, but no Tranche 1 Participant shall be responsible for the failure of any other Tranche 1 Participant to make available to the Administrative Agent for the account of such Original Lender such other Tranche 1 Participant’s Tranche 1 Percentage of any such payment.. Back to Contents (d) Whenever any Original Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Original Lender any payments from the Tranche 1 Participants pursuant to Section 2A.08(c), such Original Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Tranche 1 Participant which has paid its Tranche 1 Percentage thereof, in Dollars and in same day funds, an amount equal to such Tranche 1 Participant’s Tranche 1 Percentage thereofof the principal amount thereof and interest thereon accruing after the purchase of the respective participations. (e) The obligations of the Tranche 1 Participants to make payments to the Administrative Agent for the account of the respective Original Lender with respect to Existing Existing Tranche 1 Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances: (i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents; (ii) the existence of any claim, set-off, defense or other right which the Parent Borrower or any of its Subsidiaries may have at any time against a beneficiary named in an Existing Tranche 1 Letter of Credit, any transferee of any Existing Tranche 1 Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Original Lender, or other Person, whether in connection with this Agreement, any Existing Tranche 1 Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Parent Borrower or any of its Subsidiaries and the beneficiary named in any such Existing Tranche 1 Letter of Credit); (iii) any draft, certificate or other document presented under the Existing Tranche 1 Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or (v) the occurrence of any Default or Event of Default.. Back to Contents

Existing Tranche 1 Letters of Credit. (a) Each letter Tranche 1 Letter of credit issued under the Existing Credit Agreement and outstanding immediately prior to the Restatement Effective Date and which is intended to be a Tranche 1 Letter of Credit hereunder is listed in Part A of on Annex VIII (each such letter Tranche 1 Letter of creditCredit, an “"Existing Tranche 1 Letter of Credit”"). Each Existing Tranche 1 Letter of Credit shall be deemed to be a Tranche 1 Letter of Credit hereunder. As soon as possible following the Restatement Effective Date, each Existing Tranche 1 Letter of Credit shall be amended to replace each Original Tranche 1 Lender on such Existing Tranche 1 Letter of Credit with each Tranche 1 Lender party to this Agreement on the Restatement Effective Date in accordance with each such Tranche 1 Lender’s 's Tranche 1 Percentage. Until an Existing Tranche 1 Letter of Credit has been amended in accordance with this Section 2A.08, each Original Tranche 1 Lender shall be deemed to have sold and transferred to each Tranche 1 Lender Lender, and each such Tranche 1 Lender (each, a “"Tranche 1 Participant”") shall be deemed irrevocably and unconditionally to have purchased and received from such Original Tranche 1 Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Tranche 1 Participant’s 's Tranche 1 Percentage in such Existing Tranche 1 Letter of Credit, each substitute Existing Tranche 1 Letter of Credit, each drawing made thereunder, the obligations of any Borrower under this Agreement with respect thereto and any security therefore or guaranty pertaining thereto. Upon any change in the Tranche 1 Commitments of the Tranche 1 Lenders pursuant to Section 1.13 or 12.04(b), it is hereby agreed that, with respect to all outstanding Existing Tranche 1 Letters of Credit and Unpaid Drawings with respect thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2A.08 to reflect the new Tranche 1 Percentages of the assigning and assignee Tranche 1 Lender. (b) In determining whether to pay under any Existing Tranche 1 Letter of Credit, no Original Tranche 1 Lender shall have any obligation relative to the Tranche 1 Participants other than to determine that any documents required to be delivered under such Existing Tranche 1 Letter of Credit have been delivered and that they appear to substantially comply on their face with the requirements of such Existing Tranche 1 Letter of Credit, which obligation, it is understood, is being performed by the Issuing Agent, and upon whom each Original Tranche 1 Lender shall be entitled to rely. Any action taken or omitted to be taken by any Original Tranche 1 Lender under or in connection with any Existing Tranche 1 Letter of Credit issued by it shall not create for such Original Tranche 1 Lender any resulting liability to any Borrower, any Tranche 1 Lender or any other Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision). (c) In the event that any Original Tranche 1 Lender makes any payment under any Existing Tranche 1 Letter of Credit issued by it and the respective Borrower shall not have reimbursed such amount in full to each Original Tranche 1 Lender pursuant to Section 2A.03(a), such Original Tranche 1 Lender shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Tranche 1 Participant of such failure, and each such Tranche 1 Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Original Tranche 1 Lender, the amount of such Tranche 1 Participant’s 's Tranche 1 Percentage of such payment in Dollars and in same day funds. If the Administrative Agent so notifies any Tranche 1 Participant required to fund a payment under an Existing Tranche 1 Letter of Credit prior to 11:00 A.M. (New York time) on any Business Day, such Tranche 1 Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Original Tranche 1 Lender such Tranche 1 Participant’s Tranche 1 's Percentage of the amount of such payment on such Business Day in same day funds (and, to the extent such notice is given after 11:00 A.M. (New York time) on any Business Day, such Tranche 1 Participant shall make such payment on the immediately following Business Day). If and to the extent such Tranche 1 Participant shall not make have so made its Tranche 1 Percentage of the amount of such payment available to the Administrative Agent for the account of the respective Original Lender on the same Business DayTranche 1 Lender, such Tranche 1 Participant agrees to pay to the Administrative Agent for the account of such Original Tranche 1 Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Original Tranche 1 Lender at the overnight Federal Funds Rate for the first three days from the date when due and at the interest rate applicable to Tranche 1 Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Tranche 1 Participant to make available to the Administrative Agent for the account of the respective Original Tranche 1 Lender its Tranche 1 Percentage of any payment under any Existing Tranche 1 Letter of Credit issued by it shall not relieve any other Tranche 1 Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Original Tranche 1 Lender its Tranche 1 Percentage of any payment under any such Tranche 1 Letter of Credit on the date required, as specified above, but no Tranche 1 Participant shall be responsible for the failure of any other Tranche 1 Participant to make available to the Administrative Agent for the account of such Original Tranche 1 Lender such other Tranche 1 Participant’s 's Tranche 1 Percentage of any such payment. (d) Whenever any Original Tranche 1 Lender receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Original Tranche 1 Lender any payments from the Tranche 1 Participants pursuant to Section 2A.08(c), such Original Tranche 1 Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Tranche 1 Participant which has paid its Tranche 1 Percentage thereof, in Dollars and in same day funds, an amount equal to such Tranche 1 Participant’s 's Tranche 1 Percentage thereofof the principal amount thereof and interest thereon accruing after the purchase of the respective participations. (e) The obligations of the Tranche 1 Participants to make payments to the Administrative Agent for the account of the respective Original Tranche 1 Lender with respect to Existing Existing Tranche 1 Letters of Credit issued by it shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances: (i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents; (ii) the existence of any claim, set-off, defense or other right which the Parent Borrower or any of its Subsidiaries may have at any time against a beneficiary named in an Existing Tranche 1 Letter of Credit, any transferee of any Existing Tranche 1 Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Original Tranche 1 Lender, or other Person, whether in connection with this Agreement, any Existing Tranche 1 Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Parent Borrower or any of its Subsidiaries and the beneficiary named in any such Existing Tranche 1 Letter of Credit); (iii) any draft, certificate or other document presented under the Existing Tranche 1 Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or (v) the occurrence of any Default or Event of Default.