IRRESPECTIVE OF ANY
CLAIM, SET-OFF, DEFENSE OR OTHER RIGHT WHICH THE BORROWER MAY HAVE AT ANY TIME
AGAINST ANY ISSUING BANK OR ANY OTHER PERSON, 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 OTHER LOAN DOCUMENTS;
(II)
THE EXISTENCE OF ANY CLAIM, SETOFF, DEFENSE OR OTHER RIGHT WHICH
THE BORROWER MAY HAVE AT ANY TIME AGAINST A BENEFICIARY NAMED IN A FACILITY
LETTER OF CREDIT OR ANY TRANSFEREE OF ANY FACILITY LETTER OF CREDIT (OR ANY
PERSON FOR WHOM ANY SUCH TRANSFEREE MAY BE ACTING), THE ADMINISTRATIVE AGENT,
THE ISSUING BANK, ANY LENDER, OR ANY OTHER PERSON, WHETHER IN CONNECTION WITH
THIS AGREEMENT, ANY FACILITY LETTER OF CREDIT, THE TRANSACTIONS CONTEMPLATED
HEREIN OR ANY UNRELATED TRANSACTIONS (INCLUDING ANY UNDERLYING TRANSACTIONS
BETWEEN THE BORROWER AND THE BENEFICIARY NAMED IN ANY FACILITY LETTER OF
CREDIT);
(III)
ANY DRAFT, CERTIFICATE OR ANY OTHER DOCUMENT PRESENTED UNDER THE
FACILITY LETTER OF CREDIT PROVING TO BE FORGED, FRAUDULENT, INVALID OR
INSUFFICIENT IN ANY RESPECT OF ANY STATEMENT THEREIN BEING UNTRUE OR INACCURATE
IN ANY RESPECT;
(IV)
THE SURRENDER OR IMPAIRMENT OF ANY SECURITY FOR THE PERFORMANCE OR
OBSERVANCE OF ANY OF THE TERMS OF ANY OF THE LOAN DOCUMENTS; OR
(V)
THE OCCURRENCE OF ANY DEFAULT OR UNMATURED DEFAULT.
(B)
IN THE EVENT ANY PAYMENT BY THE BORROWER RECEIVED BY THE ISSUING
BANK OR THE ADMINISTRATIVE AGENT WITH RESPECT TO A FACILITY LETTER OF CREDIT AND
DISTRIBUTED BY THE ADMINISTRATIVE AGENT TO THE LENDERS ON ACCOUNT OF THEIR
PARTICIPATIONS IS THEREAFTER SET ASIDE, AVOIDED OR RECOVERED FROM THE
ADMINISTRATIVE AGENT OR THE ISSUING BANK IN CONNECTION WITH ANY RECEIVERSHIP,
LIQUIDATION, REORGANIZATION OR BANKRUPTCY PROCEEDING, EACH LENDER WHICH RECEIVED
SUCH DISTRIBUTION SHALL, UPON DEMAND BY THE ADMINISTRATIVE AGENT, CONTRIBUTE
SUCH LENDER'S PERCENTAGE OF THE AMOUNT SET ASIDE, AVOIDED OR RECOVERED TOGETHER
WITH INTEREST AT THE RATE REQUIRED TO BE PAID BY THE ISSUING BANK OR THE
ADMINISTRATIVE AGENT UPON THE AMOUNT REQUIRED TO BE REPAID BY THE ISSUING BANK
OR THE ADMINISTRATIVE AGENT.
42
3.8
COMPENSATION FOR FACILITY LETTERS OF CREDIT.
(A)
THE BORROWER SHALL PAY TO THE ADMINISTRATIVE AGENT, FOR THE
RATABLE ACCOUNT OF THE LENDERS, BASED UPON THE LENDERS' RESPECTIVE PERCENTAGES,
A PER ANNUM FEE (THE "FACILITY LETTER OF CREDIT FEE") WITH RESPECT TO EACH
FACILITY LETTER OF CREDIT THAT IS EQUAL TO THE LIBOR APPLICABLE MARGIN IN EFFECT
FROM TIME TO TIME.
THE FACILITY LETTER OF CREDIT FEE RELATING TO ANY FACILITY
LETTER OF CREDIT SHALL BE DUE AND PAYABLE IN ARREARS IN EQUAL INSTALLMENTS ON
THE FIRST BUSINESS DAY OF EACH MONTH FOLLOWING THE ISSUANCE OF ANY FACILITY
LETTER OF CREDIT AND, TO THE EXTENT ANY SUCH FEES ARE THEN DUE AND UNPAID, ON
THE FACILITY TERMINATION DATE.
THE ADMINISTRATIVE AGENT SHALL PROMPTLY REMIT
SUCH FACILITY LETTER OF CREDIT FEES, WHEN PAID, TO THE OTHER LENDERS IN
ACCORDANCE WITH THEIR PERCENTAGES THEREOF.
THE BORROWER SHALL NOT HAVE ANY
LIABILITY TO ANY LENDER FOR THE