OR OTHER POLITICAL
SUBDIVISION WHERE SUCH COLLATERAL IS OR MAY BE LOCATED OR WHEREIN PAYMENTS ARE
TO BE MADE OR WHEREIN DRAFTS MAY BE DRAWN, NEGOTIATED, ACCEPTED, OR PAID SHALL
BE SOLELY AT BORROWER'S RISK, LIABILITY AND RESPONSIBILITY.
(I)
EACH LENDER SHALL, TO THE EXTENT OF ITS PRO RATA SHARE OF THE
AGGREGATE AMOUNT OF ALL DISBURSEMENTS MADE WITH RESPECT TO THE LETTERS OF
CREDIT, BE DEEMED TO HAVE IRREVOCABLY PURCHASED AN UNDIVIDED PARTICIPATION IN
EACH L/C DISBURSEMENT AND EACH ADVANCE MADE AS A CONSEQUENCE OF SUCH
DISBURSEMENT.
IF AT THE TIME A L/C DISBURSEMENT IS MADE THE UNPAID BALANCE OF
ADVANCES EXCEEDS OR WOULD EXCEED, WITH THE MAKING OF SUCH L/C DISBURSEMENT, THE
FACILITY CAP AND IF SUCH L/C DISBURSEMENT IS NOT REIMBURSED BY BORROWER WITHIN
ONE (1) BUSINESS DAY, THEN AGENT SHALL PROMPTLY NOTIFY EACH LENDER, AND UPON
AGENT'S DEMAND EACH LENDER SHALL PAY TO AGENT SUCH LENDER'S PRO RATA SHARE OF
SUCH UNREIMBURSED DISBURSEMENT TOGETHER WITH SUCH LENDER'S PRO RATA SHARE OF
AGENT'S UNREIMBURSED COSTS AND EXPENSES RELATING TO SUCH UNREIMBURSED
DISBURSEMENT.
UPON RECEIPT BY AGENT OF A REPAYMENT FROM BORROWER OF ANY AMOUNT
DISBURSED BY AGENT FOR WHICH AGENT HAD ALREADY BEEN REIMBURSED BY THE LENDERS,
AGENT SHALL DELIVER TO EACH OF THE LENDERS THAT LENDER'S PRO RATA SHARE OF SUCH
REPAYMENT.
EACH LENDER'S PARTICIPATION COMMITMENT SHALL CONTINUE UNTIL THE LAST
TO OCCUR OF ANY OF THE FOLLOWING EVENTS: (I) L/C ISSUER CEASES TO BE OBLIGATED
TO ISSUE OR TO CAUSE THE ISSUANCE OF LETTERS OF CREDIT HEREUNDER; (II) NO LETTER
OF CREDIT REMAINS OUTSTANDING AND UNCANCELLED; OR (III) ALL PERSONS (OTHER THAN
BORROWER) HAVE BEEN FULLY REIMBURSED FOR ALL PAYMENTS MADE UNDER OR RELATING TO
ALL LETTERS OF CREDIT.
(J)
THE OBLIGATIONS OF A LENDER TO MAKE PAYMENTS TO AGENT FOR THE
ACCOUNT OF AGENT OR THE L/C ISSUER WITH RESPECT TO A LETTER OF CREDIT SHALL BE
IRREVOCABLE, WITHOUT ANY QUALIFICATION OR EXCEPTION WHATSOEVER AND SHALL BE MADE
IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT UNDER ALL
CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, ANY OF THE FOLLOWING
CIRCUMSTANCES:
(I)
ANY LACK OF VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY
OF THE LOAN DOCUMENTS;
(II)
THE EXISTENCE OF ANY CLAIM, SETOFF, DEFENSE OR OTHER RIGHT THAT
BORROWER MAY HAVE AT ANY TIME AGAINST A BENEFICIARY NAMED IN SUCH LETTER OF
CREDIT OR ANY TRANSFEREE OF SUCH LETTER OF CREDIT (OR ANY PERSON FOR WHICH ANY
SUCH TRANSFEREE MAY
4
BE ACTING), AGENT, L/C ISSUER, ANY LENDER, OR ANY OTHER PERSON, WHETHER IN
CONNECTION WITH THIS AGREEMENT, SUCH LETTER OF CREDIT, THE TRANSACTIONS
CONTEMPLATED HEREIN OR ANY RELATED TRANSACTIONS (INCLUDING ANY UNDERLYING
TRANSACTIONS BETWEEN BORROWER OR ANY OTHER PARTY AND THE BENEFICIARY NAMED IN
SUCH LETTER OF CREDIT);
(III)
ANY DRAFT, CERTIFICATE OR ANY OTHER DOCUMENT PRESENTED UNDER SUCH
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;
(IV)
THE SURRENDER OR IMPAIRMENT OF ANY SECURITY FOR