OF CREDIT, AND TO
REPAY ANY DRAWING UNDER A LETTER OF CREDIT CONVERTED INTO REVOLVING LOANS OR
SWINGLINE LOANS, SHALL BE UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID
STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND EACH SUCH OTHER L/C
DOCUMENT UNDER ALL CIRCUMSTANCES, INCLUDING THE FOLLOWING:
(I) ANY LACK OF
VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY L/C DOCUMENT; (II) THE
EXISTENCE OF ANY CLAIM, SETOFF, DEFENSE OR OTHER RIGHT THAT BORROWER MAY HAVE AT
ANY TIME AGAINST ANY BENEFICIARY OR ANY TRANSFEREE OF ANY LETTER OF CREDIT (OR
ANY PERSON FOR WHOM ANY SUCH BENEFICIARY OR ANY SUCH TRANSFEREE MAY BE ACTING),
L/C LENDER OR ANY OTHER PERSON, WHETHER IN CONNECTION WITH THIS AGREEMENT, THE
TRANSACTIONS CONTEMPLATED HEREBY OR BY THE L/C DOCUMENTS OR ANY UNRELATED
TRANSACTION; (III) 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; OR ANY LOSS OR DELAY IN THE TRANSMISSION OR OTHERWISE OF ANY
DOCUMENT REQUIRED IN ORDER TO MAKE A DRAWING UNDER ANY LETTER OF CREDIT; OR ANY
DEFENSE BASED UPON THE FAILURE OF ANY DRAWING UNDER A LETTER OF CREDIT TO
CONFORM TO THE
56
TERMS OF THE LETTER OF CREDIT OR ANY NON-APPLICATION OR MISAPPLICATION BY THE
BENEFICIARY OF THE PROCEEDS OF SUCH DRAWING; OR (IV) ANY OTHER CIRCUMSTANCE OR
HAPPENING WHATSOEVER, WHETHER OR NOT SIMILAR TO ANY OF THE FOREGOING, INCLUDING
ANY OTHER CIRCUMSTANCE THAT MIGHT OTHERWISE CONSTITUTE A DEFENSE AVAILABLE TO,
OR A DISCHARGE OF, BORROWER OR A SUBSIDIARY GUARANTOR; PROVIDED, HOWEVER, THAT
NEITHER BORROWER NOR ANY REVOLVING LENDER SHALL BE OBLIGATED TO REIMBURSE L/C
LENDER FOR ANY WRONGFUL PAYMENT FINALLY DETERMINED BY A COURT OF COMPETENT
JURISDICTION TO HAVE BEEN MADE BY L/C LENDER AS A RESULT OF ACTS OR OMISSIONS
CONSTITUTING WILLFUL MISCONDUCT OR GROSS NEGLIGENCE ON THE PART OF L/C LENDER.
TO THE EXTENT THAT ANY PROVISION OF ANY L/C DOCUMENT IS INCONSISTENT WITH THE
PROVISIONS OF THIS SECTION 2.03, THE PROVISIONS OF THIS SECTION 2.03 SHALL
CONTROL.
(N)
BORROWER, ADMINISTRATIVE AGENT AND REVOLVING LENDERS HEREBY AGREE
THAT, AS OF THE CLOSING DATE, EACH LETTER OF CREDIT IDENTIFIED ON
SCHEDULE 2.03(N) (EACH, AN "EXISTING LETTER OF CREDIT") SHALL BE A LETTER OF
CREDIT AS IF ORIGINALLY ISSUED UNDER THIS AGREEMENT, AND THAT THE FEES AND OTHER
PROVISIONS SET FORTH IN THIS SECTION 2.03 SHALL BE APPLICABLE TO EACH EXISTING
LETTER OF CREDIT AS OF THE CLOSING DATE.
(O)
ON THE LAST BUSINESS DAY OF EACH MONTH, BORROWER AND EACH L/C
LENDER SHALL PROVIDE TO ADMINISTRATIVE AGENT SUCH INFORMATION REGARDING THE
OUTSTANDING LETTERS OF CREDIT AS ADMINISTRATIVE AGENT SHALL REASONABLY REQUEST,
IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO ADMINISTRATIVE AGENT (AND IN
SUCH STANDARD ELECTRONIC FORMAT AS ADMINISTRATIVE AGENT SHALL REASONABLY
SPECIFY), FOR PURPOSES OF ADMINISTRATIVE AGENT'S ONGOING TRACKING AND REPORTING
OF OUTSTANDING LETTERS OF CREDIT.
ADMINISTRATIVE AGENT SHALL MAINTAIN A RECORD
OF ALL OUTSTANDING LETTERS