BANK; AND
(III)
SELECT A NEGOTIATING BANK.
(D)
ALL DIRECTIONS, CORRESPONDENCE, AND FUNDS TRANSFERS RELATING TO ANY L/C ARE
AT THE RISK OF THE BORROWERS.
THE ISSUER SHALL HAVE DISCHARGED THE ISSUER'S
OBLIGATIONS UNDER ANY L/C OR THE DRAWING THEREUNDER WHICH INCLUDES PAYMENT
INSTRUCTIONS IF THE ISSUER INITIATES THE METHOD OF PAYMENT CALLED FOR THEREBY
(OR INITIATES ANY OTHER COMMERCIALLY REASONABLE AND COMPARABLE METHOD). NONE OF
THE AGENT, THE LENDERS OR THE ISSUER SHALL HAVE ANY RESPONSIBILITY FOR ANY
INACCURACY, INTERRUPTION, ERROR, OR DELAY IN TRANSMISSION OR DELIVERY BY POST,
TELEGRAPH OR CABLE, OR FOR ANY INACCURACY OF TRANSLATION, EXCEPTING GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.
(E)
THE AGENT'S, THE LENDERS' AND THE ISSUER'S RIGHTS, POWERS, PRIVILEGES AND
IMMUNITIES SPECIFIED IN OR ARISING UNDER THIS AGREEMENT ARE IN ADDITION TO ANY
HERETOFORE OR AT ANY TIME HEREAFTER OTHERWISE CREATED OR ARISING, WHETHER BY
STATUTE OR RULE OF LAW OR CONTRACT.
(F)
EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED HEREUNDER OR AGREED TO IN
WRITING BY THE ISSUER AND THE LEAD BORROWER, THE L/C WILL BE GOVERNED BY EITHER,
AT THE ELECTION OF THE ISSUER, THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS, INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 500, AND ANY
SUBSEQUENT REVISIONS THEREOF, OR THE INTERNATIONAL STANDBY PRACTICES - ISP 98,
INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION, NO 590, AND SUBSEQUENT REVISIONS
THERETO.
THE OBLIGATIONS OF THE BORROWERS UNDER THIS AGREEMENT WITH RESPECT TO L/C'S ARE
ABSOLUTE, UNCONDITIONAL, AND IRREVOCABLE AND SHALL BE PERFORMED STRICTLY IN
ACCORDANCE WITH THE TERMS HEREOF UNDER ALL CIRCUMSTANCES, WHATSOEVER INCLUDING,
WITHOUT LIMITATION, THE FOLLOWING:
(I)
ANY LACK OF VALIDITY OR ENFORCEABILITY OR RESTRICTION, RESTRAINT,
OR STAY IN THE ENFORCEMENT OF THIS AGREEMENT, ANY L/C, OR ANY OTHER AGREEMENT OR
INSTRUMENT RELATING THERETO;
(II)
ANY AMENDMENT OR WAIVER OF, OR CONSENT TO THE DEPARTURE FROM, ANY
L/C;
(III)
THE EXISTENCE OF ANY CLAIM, SET-OFF, DEFENSE, OR OTHER RIGHT
WHICH THE BORROWERS MAY HAVE AT ANY TIME AGAINST THE BENEFICIARY OF ANY L/C; AND
(IV)
ANY GOOD FAITH HONORING OF A DRAWING UNDER ANY L/C, WHICH DRAWING
POSSIBLY COULD HAVE BEEN DISHONORED BASED UPON A STRICT CONSTRUCTION OF THE
TERMS OF THE L/C.
2.21
CHANGED CIRCUMSTANCES.
(A)
SUBJECT TO THE PROVISIONS OF THIS AGREEMENT, THE BORROWERS SHALL HAVE THE
OPTION (A) AS OF ANY DATE, TO CONVERT ALL OR ANY PART OF BASE MARGIN LOANS TO,
OR REQUEST THAT NEW REVOLVING CREDIT LOANS BE MADE AS, INDEX LOANS OF VARIOUS
INTEREST PERIODS, (B) AS OF THE LAST
54
day of any Interest Period, to continue all or any portion of the relevant Index
Loans as Index
Loans; (C) as of the last day of any Interest Period, to convert
all or any portion of the Index Loans to Base Margin Loans; and (D) at any time,
to request new Revolving Credit Loans as Base Margin Loans; provided, that
Revolving Credit Loans may not be continued as or converted to Index Loans, if
the continuation or conversion thereof would violate the provisions of Sections
2.21(b) or 2.21(c)