SUCH LETTER OF CREDIT.
(G)
TO THE EXTENT THAT ANY PROVISION OF ANY
APPLICATION RELATED TO ANY LETTER OF CREDIT IS INCONSISTENT WITH THE PROVISIONS
OF THIS AGREEMENT, THE PROVISIONS OF THIS AGREEMENT SHALL APPLY.
(H)
EACH BORROWER AGREES JOINTLY AND SEVERALLY
TO BE BOUND BY THE TERMS OF EACH APPLICATION AND THE ISSUING LENDERS' WRITTEN
REGULATIONS AND CUSTOMARY PRACTICES RELATING TO LETTERS OF CREDIT, THOUGH SUCH
INTERPRETATIONS MAY BE DIFFERENT FROM SUCH BORROWER'S OWN.
IT IS UNDERSTOOD AND
AGREED THAT, EXCEPT IN THE CASE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE
ADMINISTRATIVE AGENT AND THE ISSUING LENDERS SHALL NOT BE LIABLE FOR ANY ERROR,
NEGLIGENCE AND/OR MISTAKES, WHETHER OF OMISSION OR COMMISSION, IN FOLLOWING THE
BORROWERS' INSTRUCTIONS OR THOSE CONTAINED IN THE LETTERS OF CREDIT OR ANY
MODIFICATIONS, AMENDMENTS OR SUPPLEMENTS THERETO.
(I)
EACH LENDER'S PAYMENT OBLIGATION UNDER
SUBSECTION 2.8(C) AND THE OBLIGATIONS OF THE BORROWERS TO REIMBURSE AN ISSUING
LENDER UPON A DRAW UNDER A LETTER OF CREDIT, SHALL BE ABSOLUTE, UNCONDITIONAL
AND IRREVOCABLE UNDER ANY CIRCUMSTANCES, AND SHALL BE PERFORMED STRICTLY IN
ACCORDANCE WITH THE TERMS OF THIS SECTION 2.8 UNDER ALL CIRCUMSTANCES, INCLUDING
THE FOLLOWING CIRCUMSTANCES:
(I)
ANY SET-OFF, COUNTERCLAIM, RECOUPMENT,
DEFENSE OR OTHER RIGHT WHICH SUCH LENDER MAY HAVE AGAINST SUCH ISSUING LENDER,
THE BORROWERS OR ANY OTHER PERSON FOR ANY REASON WHATSOEVER;
40
(II)
ANY LACK OF VALIDITY OR ENFORCEABILITY OF
ANY LETTER OF CREDIT;
(III)
THE EXISTENCE OF ANY CLAIM, SET-OFF, DEFENSE
OR OTHER RIGHT WHICH THE BORROWERS OR ANY LENDER MAY HAVE AT ANY TIME AGAINST A
BENEFICIARY OR ANY TRANSFEREE OF ANY LETTER OF CREDIT (OR ANY PERSONS FOR WHOM
ANY SUCH TRANSFEREE MAY BE ACTING), SUCH ISSUING LENDER 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 THE BORROWERS AND THE BENEFICIARY FOR WHICH ANY LETTER OF
CREDIT WAS PROCURED);
(IV)
ANY DRAFT, DEMAND, CERTIFICATE OR OTHER
DOCUMENT PRESENTED UNDER ANY 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 EVEN IF SUCH ISSUING LENDER HAS BEEN NOTIFIED THEREOF;
(V)
PAYMENT BY SUCH ISSUING LENDER 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;
(VI)
ANY ADVERSE CHANGE IN THE BUSINESS,
OPERATIONS, PROPERTIES, ASSETS, CONDITION (FINANCIAL OR OTHERWISE) OR PROSPECTS
OF THE BORROWERS;
(VII)
ANY BREACH OF THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT BY ANY OF THE BORROWERS;
(VIII)
THE OCCURRENCE OR CONTINUANCE OF AN INSOLVENCY
PROCEEDING WITH RESPECT TO THE BORROWERS;
(IX)
THE FACT THAT AN EVENT OF DEFAULT OR A
DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING;
(X)
THE FACT THAT THE TERMINATION DATE SHALL
HAVE PASSED OR THIS AGREEMENT OR THE COMMITMENTS HEREUNDER SHALL HAVE BEEN
TERMINATED; AND
(XI)
ANY OTHER CIRCUMSTANCE OR HAPPENING
WHATSOEVER, WHETHER OR NOT SIMILAR TO ANY OF THE