LENDER, SUCH LENDER'S PROPORTIONATE SHARE OF THE
AMOUNT OF SUCH PAYMENT FROM THE BORROWER IN DOLLARS.
EACH SUCH PAYMENT SHALL BE
MADE BY BANK OF AMERICA ON THE BUSINESS DAY ON WHICH BANK OF AMERICA RECEIVES
IMMEDIATELY AVAILABLE FUNDS FROM THE ADMINISTRATIVE AGENT PURSUANT TO THE
IMMEDIATELY PRECEDING SENTENCE, IF RECEIVED PRIOR TO 12:00 NOON ON SUCH BUSINESS
DAY, AND OTHERWISE ON THE NEXT SUCCEEDING BUSINESS DAY.
(D)
DOCUMENTATION.
UPON THE REQUEST OF ANY LENDER, THE ADMINISTRATIVE
AGENT SHALL FURNISH TO SUCH LENDER COPIES OF ANY LETTER OF CREDIT, REIMBURSEMENT
AGREEMENT OR APPLICATION FOR ANY LETTER OF CREDIT AND SUCH OTHER DOCUMENTATION
AS MAY REASONABLY BE REQUESTED BY SUCH LENDER.
(E)
OBLIGATIONS IRREVOCABLE.
THE OBLIGATIONS OF EACH LENDER TO MAKE
PAYMENTS TO THE ADMINISTRATIVE AGENT WITH RESPECT TO ANY LETTER OF CREDIT AND
THEIR PARTICIPATIONS THEREIN PURSUANT TO THE PROVISIONS OF SECTION 4.8(C) HEREOF
OR OTHERWISE AND THE OBLIGATIONS OF THE BORROWER TO MAKE PAYMENTS TO BANK OF
AMERICA OR TO THE ADMINISTRATIVE AGENT, FOR THE ACCOUNT OF THE LENDERS, SHALL BE
IRREVOCABLE, SHALL NOT BE SUBJECT TO ANY QUALIFICATION OR EXCEPTION WHATSOEVER
AND SHALL BE MADE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT
(ASSUMING, IN THE CASE OF THE OBLIGATIONS OF THE LENDERS TO MAKE SUCH PAYMENTS,
THAT THE LETTER OF CREDIT HAS BEEN ISSUED IN ACCORDANCE WITH SECTION 3.4),
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, SET-OFF, DEFENSE OR OTHER RIGHT WHICH
THE BORROWER MAY HAVE AT ANY TIME AGAINST A BENEFICIARY NAMED IN A LETTER OF
CREDIT OR ANY TRANSFEREE OF ANY LETTER OF CREDIT (OR ANY PERSON FOR WHOM ANY
SUCH TRANSFEREE MAY BE ACTING), ANY LENDER, BANK OF AMERICA OR ANY OTHER PERSON,
WHETHER IN CONNECTION WITH THIS AGREEMENT, ANY LETTER OF CREDIT, THE
TRANSACTIONS CONTEMPLATED HEREIN OR ANY UNRELATED TRANSACTIONS (INCLUDING ANY
UNDERLYING TRANSACTIONS BETWEEN THE BORROWER OR ANY OTHER PERSON AND THE
BENEFICIARY NAMED IN ANY LETTER OF CREDIT);
38
(III)
ANY DRAFT, CERTIFICATE OR ANY OTHER DOCUMENT PRESENTED UNDER THE
LETTER OF CREDIT UPON WHICH PAYMENT HAS BEEN MADE IN GOOD FAITH AND ACCORDING TO
ITS TERMS 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 COLLATERAL, REAL ESTATE OR ANY
OTHER SECURITY FOR THE SECURED OBLIGATIONS OR THE PERFORMANCE OR OBSERVANCE OF
ANY OF THE TERMS OF ANY OF THE LOAN DOCUMENTS;
(V)
THE OCCURRENCE OF ANY DEFAULT OR EVENT OF DEFAULT; OR
(VI)
BANK OF AMERICA'S OR THE ADMINISTRATIVE AGENT'S FAILURE TO DELIVER
THE NOTICE PROVIDED FOR IN SECTION 3.4(C).
SECTION 3.8
INDEMNIFICATION, EXONERATION.
(A)
INDEMNIFICATION.
IN ADDITION TO AMOUNTS PAYABLE AS ELSEWHERE
PROVIDED IN THIS ARTICLE 3, THE BORROWER AGREES, TO PROTECT, INDEMNIFY, PAY AND
SAVE THE LENDERS AND THE ADMINISTRATIVE AGENT HARMLESS FROM AND AGAINST ANY AND
ALL CLAIMS, DEMANDS,