Credit, and the obligations of the Borrower to reimburse the 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 2.9
[Letter of Credit Subfacility] under all circumstances, including the following
circumstances:
(I)
ANY SET-OFF, COUNTERCLAIM, RECOUPMENT,
DEFENSE OR OTHER RIGHT WHICH SUCH LENDER MAY HAVE AGAINST THE AGENT, ANY LOAN
PARTY OR ANY OTHER PERSON FOR ANY REASON WHATSOEVER;
(II)
THE FAILURE OF ANY LOAN PARTY OR ANY OTHER
PERSON TO COMPLY, IN CONNECTION WITH A LETTER OF CREDIT BORROWING, WITH THE
CONDITIONS SET FORTH IN SECTION 2.1 [REVOLVING CREDIT COMMITMENTS], 2.4
[REVOLVING CREDIT LOAN REQUESTS; SWING LOAN REQUESTS], 2.4.2 [SWING LOAN
REQUESTS] OR 6.2 [EACH ADDITIONAL LOAN OR LETTER OF CREDIT], IF APPLICABLE, OR
AS OTHERWISE SET FORTH IN THIS AGREEMENT FOR THE MAKING OF A REVOLVING CREDIT
LOAN, IT BEING ACKNOWLEDGED THAT SUCH CONDITIONS ARE NOT REQUIRED FOR THE MAKING
OF A LETTER OF CREDIT BORROWING AND THE OBLIGATION OF THE LENDERS TO MAKE
PARTICIPATION ADVANCES UNDER SECTION 2.9.3 [DISBURSEMENTS, REIMBURSEMENT];
33
(III)
ANY LACK OF VALIDITY OR ENFORCEABILITY OF
ANY LETTER OF CREDIT;
(IV)
THE EXISTENCE OF ANY CLAIM, SET-OFF, DEFENSE
OR OTHER RIGHT WHICH ANY LOAN PARTY 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), THE AGENT, THE LETTER OF CREDIT LENDER OR
ANY LENDER OR ANY OTHER PERSON OR, WHETHER IN CONNECTION WITH THIS AGREEMENT,
THE TRANSACTIONS CONTEMPLATED HEREIN OR ANY UNRELATED TRANSACTION (INCLUDING ANY
UNDERLYING TRANSACTION BETWEEN ANY LOAN PARTY OR SUBSIDIARIES OF A LOAN PARTY
AND THE BENEFICIARY FOR WHICH ANY LETTER OF CREDIT WAS PROCURED);
(V)
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 THE LETTER OF CREDIT LENDER HAS BEEN NOTIFIED
THEREOF;
(VI)
PAYMENT BY THE LETTER OF CREDIT 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;
(VII)
ANY ADVERSE CHANGE IN THE BUSINESS, OPERATIONS,
PROPERTIES, ASSETS, CONDITION (FINANCIAL OR OTHERWISE) OR PROSPECTS OF ANY LOAN
PARTY OR SUBSIDIARIES OF A LOAN PARTY;
(VIII)
ANY BREACH OF THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT BY ANY PARTY THERETO;
(IX)
THE OCCURRENCE OR CONTINUANCE OF AN
INSOLVENCY PROCEEDING WITH RESPECT TO ANY LOAN PARTY;
(X)
THE FACT THAT AN EVENT OF DEFAULT OR A
POTENTIAL DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING;
(XI)
THE FACT THAT THE EXPIRATION DATE SHALL HAVE
PASSED OR THIS AGREEMENT OR THE COMMITMENTS HEREUNDER SHALL HAVE BEEN
TERMINATED; AND
(XII)
ANY OTHER CIRCUMSTANCE OR HAPPENING
WHATSOEVER, WHETHER OR NOT SIMILAR TO ANY OF THE FOREGOING.
2.9.8.
INDEMNITY.
In addition to amounts payable as provided in