SUCH A PAYMENT MADE BY AGENT UNDER SUCH A LETTER OF CREDIT, AGENT WILL PAY TO
EACH LENDER, IN THE SAME FUNDS AS THOSE RECEIVED BY AGENT, THE AMOUNT OF SUCH
LENDER'S COMMITMENT PERCENTAGE OF SUCH FUNDS, EXCEPT AGENT SHALL RETAIN THE
AMOUNT OF THE COMMITMENT PERCENTAGE OF SUCH FUNDS OF ANY LENDER THAT DID NOT
MAKE A PARTICIPATION ADVANCE IN RESPECT OF SUCH PAYMENT BY AGENT.
(B)
IF AGENT IS REQUIRED AT ANY TIME TO RETURN TO BORROWER, OR TO A
TRUSTEE, RECEIVER, LIQUIDATOR, CUSTODIAN, OR ANY OFFICIAL IN ANY INSOLVENCY
PROCEEDING, ANY PORTION OF THE PAYMENTS MADE BY BORROWER TO AGENT PURSUANT TO
SECTION 2.17(A) IN
11
REIMBURSEMENT OF A PAYMENT MADE UNDER THE LETTER OF CREDIT OR INTEREST OR FEE
THEREON, EACH LENDER SHALL, ON DEMAND OF AGENT, FORTHWITH RETURN TO AGENT THE
AMOUNT OF ITS COMMITMENT PERCENTAGE OF ANY AMOUNTS SO RETURNED BY AGENT PLUS
INTEREST AT THE FEDERAL FUNDS EFFECTIVE RATE.
2.18
DOCUMENTATION.
BORROWER AGREES TO BE BOUND BY THE TERMS OF THE
LETTER OF CREDIT APPLICATION AND BY AGENT'S INTERPRETATIONS OF ANY LETTER OF
CREDIT ISSUED FOR BORROWER'S ACCOUNT AND BY AGENT'S WRITTEN REGULATIONS AND
CUSTOMARY PRACTICES RELATING TO LETTERS OF CREDIT, THOUGH AGENT'S
INTERPRETATIONS MAY BE DIFFERENT FROM BORROWER'S OWN.
IN THE EVENT OF A
CONFLICT BETWEEN THE LETTER OF CREDIT APPLICATION AND THIS AGREEMENT, THIS
AGREEMENT SHALL GOVERN.
IT IS UNDERSTOOD AND AGREED THAT, EXCEPT IN THE CASE OF
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (AS DETERMINED BY A COURT OF COMPETENT
JURISDICTION IN A FINAL NON-APPEALABLE JUDGMENT), AGENT SHALL NOT BE LIABLE FOR
ANY ERROR, NEGLIGENCE AND/OR MISTAKES, WHETHER OF OMISSION OR COMMISSION, IN
FOLLOWING BORROWER'S INSTRUCTIONS OR THOSE CONTAINED IN THE LETTERS OF CREDIT OR
ANY MODIFICATIONS, AMENDMENTS OR SUPPLEMENTS THERETO.
2.19
DETERMINATION TO HONOR DRAWING REQUEST.
IN DETERMINING WHETHER TO
HONOR ANY REQUEST FOR DRAWING UNDER ANY LETTER OF CREDIT BY THE BENEFICIARY
THEREOF, AGENT SHALL BE RESPONSIBLE ONLY TO DETERMINE THAT THE DOCUMENTS AND
CERTIFICATES REQUIRED TO BE DELIVERED UNDER SUCH LETTER OF CREDIT HAVE BEEN
DELIVERED AND THAT THEY COMPLY ON THEIR FACE WITH THE REQUIREMENTS OF SUCH
LETTER OF CREDIT AND THAT ANY OTHER DRAWING CONDITION APPEARING ON THE FACE OF
SUCH LETTER OF CREDIT HAS BEEN SATISFIED IN THE MANNER SO SET FORTH.
2.20
NATURE OF PARTICIPATION AND REIMBURSEMENT OBLIGATIONS.
EACH
LENDER'S OBLIGATION IN ACCORDANCE WITH THIS AGREEMENT TO MAKE THE REVOLVING
ADVANCES OR PARTICIPATION ADVANCES AS A RESULT OF A DRAWING UNDER A LETTER OF
CREDIT, AND THE OBLIGATIONS OF BORROWER TO REIMBURSE AGENT UPON A DRAW UNDER A
LETTER OF CREDIT, SHALL BE ABSOLUTE, UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE
PERFORMED STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS SECTION 2.20 UNDER ALL
CIRCUMSTANCES, INCLUDING THE FOLLOWING CIRCUMSTANCES:
(A)
ANY SET-OFF, COUNTERCLAIM, RECOUPMENT, DEFENSE OR OTHER RIGHT
WHICH SUCH LENDER MAY HAVE AGAINST AGENT, BORROWER OR ANY OTHER PERSON FOR ANY
REASON WHATSOEVER;
(B)
THE FAILURE OF BORROWER OR ANY OTHER PERSON TO COMPLY, IN
CONNECTION WITH A LETTER OF CREDIT BORROWING, WITH