AGENT FOR THE
ACCOUNT OF ISSUING BANK IN CONNECTION WITH ISSUING BANK'S PAYMENT UNDER A LETTER
OF CREDIT SHALL BE ABSOLUTE, UNCONDITIONAL AND IRREVOCABLE, NOT SUBJECT TO ANY
COUNTERCLAIM, SETOFF, QUALIFICATION OR EXCEPTION WHATSOEVER, AND SHALL BE MADE
IN ACCORDANCE WITH THIS AGREEMENT UNDER ALL CIRCUMSTANCES, IRRESPECTIVE OF ANY
LACK OF VALIDITY OR UNENFORCEABILITY OF ANY LOAN DOCUMENTS; ANY DRAFT,
CERTIFICATE OR OTHER DOCUMENT PRESENTED UNDER A LETTER OF CREDIT HAVING BEEN
DETERMINED TO BE FORGED, FRAUDULENT, INVALID OR INSUFFICIENT IN ANY RESPECT OR
ANY STATEMENT THEREIN BEING UNTRUE OR INACCURATE IN ANY RESPECT; OR THE
EXISTENCE OF ANY SETOFF OR DEFENSE THAT ANY OBLIGOR MAY HAVE WITH RESPECT TO ANY
OBLIGATIONS.
ISSUING BANK DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY FAILURE OR
DELAY IN PERFORMANCE OR ANY BREACH BY ANY BORROWER OR OTHER PERSON OF ANY
OBLIGATIONS UNDER ANY LC DOCUMENTS.
ISSUING BANK DOES NOT MAKE TO LENDERS ANY
EXPRESS OR IMPLIED WARRANTY, REPRESENTATION OR GUARANTY WITH RESPECT TO THE
COLLATERAL, LC DOCUMENTS OR ANY OBLIGOR.
ISSUING BANK SHALL NOT BE RESPONSIBLE
TO ANY LENDER FOR ANY RECITALS, STATEMENTS, INFORMATION, REPRESENTATIONS OR
WARRANTIES CONTAINED IN, OR FOR THE EXECUTION, VALIDITY, GENUINENESS,
EFFECTIVENESS OR ENFORCEABILITY OF ANY LC DOCUMENTS; THE VALIDITY, GENUINENESS,
ENFORCEABILITY, COLLECTIBILITY, VALUE OR SUFFICIENCY OF ANY COLLATERAL OR THE
PERFECTION OF ANY LIEN THEREIN; OR THE ASSETS, LIABILITIES, FINANCIAL CONDITION,
RESULTS OF OPERATIONS, BUSINESS, CREDITWORTHINESS OR LEGAL STATUS OF ANY
OBLIGOR.
D.
NO ISSUING BANK INDEMNITEE SHALL BE LIABLE TO ANY LENDER OR OTHER
PERSON FOR ANY ACTION TAKEN OR OMITTED TO BE TAKEN IN CONNECTION WITH ANY LC
DOCUMENTS EXCEPT AS A RESULT OF ITS ACTUAL GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
ISSUING BANK SHALL NOT HAVE ANY LIABILITY TO ANY LENDER IF ISSUING
BANK REFRAINS FROM ANY ACTION UNDER ANY LETTER OF CREDIT OR LC DOCUMENTS UNTIL
IT RECEIVES WRITTEN INSTRUCTIONS FROM REQUIRED LENDERS.
2.2.3
CASH COLLATERAL.
IF ANY LC OBLIGATIONS, WHETHER OR NOT THEN DUE OR
PAYABLE, SHALL FOR ANY REASON BE OUTSTANDING AT ANY TIME (A) THAT AN EVENT OF
DEFAULT EXISTS, (B) THAT AVAILABILITY IS LESS THAN ZERO, (C) AFTER THE
COMMITMENT TERMINATION DATE, OR (D) WITHIN 20 BUSINESS DAYS PRIOR TO THE
REVOLVER TERMINATION DATE, THEN BORROWERS SHALL, AT ISSUING BANK'S OR AGENT'S
REQUEST, CASH COLLATERALIZE THE STATED AMOUNT OF ALL OUTSTANDING LETTERS OF
CREDIT AND PAY TO ISSUING BANK THE AMOUNT OF ALL OTHER LC OBLIGATIONS.
BORROWERS SHALL, ON DEMAND BY ISSUING BANK OR AGENT FROM TIME TO TIME, CASH
COLLATERALIZE THE LC OBLIGATIONS OF ANY DEFAULTING LENDER.
IF BORROWERS FAIL TO
PROVIDE ANY CASH COLLATERAL AS REQUIRED HEREUNDER, LENDERS MAY (AND SHALL UPON
DIRECTION OF AGENT) ADVANCE, AS LOANS, THE AMOUNT OF THE CASH COLLATERAL
REQUIRED (WHETHER OR NOT THE COMMITMENTS HAVE TERMINATED, AN OVERADVANCE EXISTS
OR THE CONDITIONS IN SECTION 6 ARE SATISFIED).
2.2.4
EXISTING LETTERS OF CREDIT.
ON THE CLOSING DATE, (I) EACH EXISTING
LETTER OF CREDIT, TO THE EXTENT OUTSTANDING, SHALL BE AUTOMATICALLY AND WITHOUT
FURTHER ACTION BY THE PARTIES THERETO DEEMED CONVERTED INTO LETTERS OF CREDIT