ANY LETTER
OF CREDIT OR THE PROCEEDS THEREOF (OR ANY PERSONS FOR WHOM ANY SUCH TRANSFEREE
MAY BE ACTING), AGENT OR ANY LENDER OR ANY OTHER PERSON, WHETHER IN CONNECTION
WITH THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREIN OR ANY UNRELATED
TRANSACTION (INCLUDING ANY UNDERLYING TRANSACTION BETWEEN ANY BORROWER OR ANY
SUBSIDIARIES OF SUCH BORROWER AND THE BENEFICIARY FOR WHICH ANY LETTER OF CREDIT
WAS PROCURED);
(V)
THE LACK OF POWER OR AUTHORITY OF ANY SIGNER
OF (OR ANY DEFECT IN OR FORGERY OF ANY SIGNATURE OR ENDORSEMENT ON) OR THE FORM
OF OR LACK OF VALIDITY, SUFFICIENCY, ACCURACY, ENFORCEABILITY OR GENUINENESS OF
ANY DRAFT, DEMAND, INSTRUMENT, CERTIFICATE OR OTHER DOCUMENT PRESENTED UNDER OR
IN CONNECTION WITH ANY LETTER OF CREDIT, OR ANY FRAUD OR ALLEGED FRAUD IN
CONNECTION WITH ANY LETTER OF CREDIT, OR THE TRANSPORT OF ANY PROPERTY OR
PROVISIONS OF SERVICES RELATING TO A LETTER OF CREDIT, IN EACH CASE EVEN IF
AGENT OR ANY OF AGENT'S AFFILIATES HAS BEEN NOTIFIED THEREOF;
(VI)
PAYMENT BY AGENT UNDER ANY LETTER OF CREDIT
AGAINST PRESENTATION OF A DEMAND, DRAFT OR CERTIFICATE OR OTHER DOCUMENT WHICH
DOES NOT COMPLY WITH THE TERMS OF SUCH LETTER OF CREDIT; PROVIDED THAT THE
FOREGOING SHALL NOT BE CONSTRUED TO EXCUSE THE AGENT FROM LIABILITY TO THE
BORROWERS FOR DIRECT DAMAGES SUFFERED BY THE BORROWERS AS A RESULT OF THE
FAILURE
35
OF THE AGENT TO EXERCISE CARE WHEN DETERMINING WHETHER SUCH DRAFTS OR OTHER
DOCUMENTS COMPLY WITH THE TERMS THEREOF;
(VII)
THE SOLVENCY OF, OR ANY ACTS OR OMISSIONS BY,
ANY BENEFICIARY OF ANY LETTER OF CREDIT, OR ANY OTHER PERSON HAVING A ROLE IN
ANY TRANSACTION OR OBLIGATION RELATING TO A LETTER OF CREDIT, OR THE EXISTENCE,
NATURE, QUALITY, QUANTITY, CONDITION, VALUE OR OTHER CHARACTERISTIC OF ANY
PROPERTY OR SERVICES RELATING TO A LETTER OF CREDIT;
(VIII)
ANY FAILURE BY THE AGENT OR ANY OF AGENT'S
AFFILIATES TO ISSUE ANY LETTER OF CREDIT IN THE FORM REQUESTED BY BORROWING
AGENT, UNLESS THE AGENT HAS RECEIVED WRITTEN NOTICE FROM BORROWING AGENT OF SUCH
FAILURE WITHIN THREE (3) BUSINESS DAYS AFTER THE AGENT SHALL HAVE FURNISHED
BORROWING AGENT A COPY OF SUCH LETTER OF CREDIT AND SUCH ERROR IS MATERIAL AND
NO DRAWING HAS BEEN MADE THEREON PRIOR TO RECEIPT OF SUCH NOTICE;
(IX)
ANY MATERIAL ADVERSE EFFECT;
(X)
ANY BREACH OF THIS AGREEMENT OR ANY OTHER
DOCUMENT BY ANY PARTY THERETO;
(XI)
THE OCCURRENCE OR CONTINUANCE OF AN
INSOLVENCY PROCEEDING WITH RESPECT TO ANY BORROWER OR ANY GUARANTOR;
(XII)
THE FACT THAT A DEFAULT OR EVENT OF DEFAULT
SHALL HAVE OCCURRED AND BE CONTINUING;
(XIII)
THE FACT THAT THE TERM SHALL HAVE EXPIRED OR
THIS AGREEMENT OR THE OBLIGATIONS HEREUNDER SHALL HAVE BEEN TERMINATED; AND
(XIV)
ANY OTHER CIRCUMSTANCE OR HAPPENING WHATSOEVER,
WHETHER OR NOT SIMILAR TO ANY OF THE FOREGOING.
2.17.
INDEMNITY.
IN ADDITION TO AMOUNTS PAYABLE AS
PROVIDED IN SECTION 16.5, EACH BORROWER HEREBY AGREES TO PROTECT, INDEMNIFY, PAY
AND SAVE HARMLESS AGENT AND ANY OF AGENT'S AFFILIATES THAT HAVE ISSUED