TO THE FACILITY AGENT ITS APPLICABLE TRANCHE PERCENTAGE OF THE
UNREIMBURSED AMOUNT, IN THE SAME MANNER AS PROVIDED IN SECTION 2.06 WITH RESPECT
TO LOANS MADE BY SUCH LENDER (AND SECTION 2.06 SHALL APPLY, MUTATIS MUTANDIS, TO
THE PAYMENT OBLIGATIONS OF THE LENDERS), AND THE FACILITY AGENT SHALL PROMPTLY
PAY TO THE ISSUING BANK THE AMOUNTS SO RECEIVED BY IT FROM THE APPLICABLE
LENDERS.
PROMPTLY FOLLOWING RECEIPT BY THE FACILITY AGENT OF ANY PAYMENT FROM A
BORROWER PURSUANT TO THIS PARAGRAPH, THE FACILITY AGENT SHALL DISTRIBUTE SUCH
PAYMENT TO THE ISSUING BANK OR, TO THE EXTENT THAT LENDERS HAVE MADE PAYMENTS
PURSUANT TO THIS PARAGRAPH TO REIMBURSE THE ISSUING BANK, THEN TO SUCH LENDERS
AND THE ISSUING BANK AS THEIR INTERESTS MAY APPEAR.
ANY PAYMENT MADE BY A
LENDER PURSUANT TO THIS PARAGRAPH TO REIMBURSE THE ISSUING BANK FOR ANY LC
DISBURSEMENT (OTHER THAN THE FUNDING OF ABR REVOLVING LOANS OR A SWINGLINE LOAN
AS CONTEMPLATED ABOVE)
40
SHALL NOT CONSTITUTE A LOAN AND SHALL NOT RELIEVE THE APPLICABLE BORROWER OF ITS
OBLIGATION TO REIMBURSE SUCH LC DISBURSEMENT.
(F)
OBLIGATIONS ABSOLUTE.
THE BORROWERS' OBLIGATIONS TO REIMBURSE LC
DISBURSEMENTS AS PROVIDED IN PARAGRAPH (E) OF THIS SECTION SHALL BE ABSOLUTE,
UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PERFORMED STRICTLY IN ACCORDANCE
WITH THE TERMS OF THIS AGREEMENT UNDER ANY AND ALL CIRCUMSTANCES WHATSOEVER AND
IRRESPECTIVE OF (I) ANY LACK OF VALIDITY OR ENFORCEABILITY OF ANY LETTER OF
CREDIT, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY TERM OR PROVISION
THEREIN OR HEREIN, (II) ANY DRAFT OR OTHER DOCUMENT PRESENTED UNDER A LETTER OF
CREDIT PROVING TO BE FORGED, FRAUDULENT OR INVALID IN ANY RESPECT OR ANY
STATEMENT THEREIN BEING UNTRUE OR INACCURATE IN ANY RESPECT, (III) PAYMENT BY
THE ISSUING BANK UNDER A LETTER OF CREDIT AGAINST PRESENTATION OF A DRAFT OR
OTHER DOCUMENT THAT DOES NOT COMPLY WITH THE TERMS OF SUCH LETTER OF CREDIT OR
(IV) ANY OTHER EVENT OR CIRCUMSTANCE WHATSOEVER, WHETHER OR NOT SIMILAR TO ANY
OF THE FOREGOING, THAT MIGHT, BUT FOR THE PROVISIONS OF THIS SECTION, CONSTITUTE
A LEGAL OR EQUITABLE DISCHARGE OF, OR PROVIDE A RIGHT OF SETOFF AGAINST, THE
APPLICABLE BORROWER'S OBLIGATIONS HEREUNDER.
NONE OF THE FACILITY AGENT, THE
LENDERS OR THE ISSUING BANK, OR ANY OF THEIR RELATED PARTIES, SHALL HAVE ANY
LIABILITY OR RESPONSIBILITY BY REASON OF OR IN CONNECTION WITH THE ISSUANCE OR
TRANSFER OF ANY LETTER OF CREDIT OR ANY PAYMENT OR FAILURE TO MAKE ANY PAYMENT
THEREUNDER (IRRESPECTIVE OF ANY OF THE CIRCUMSTANCES REFERRED TO IN THE
PRECEDING SENTENCE), OR ANY ERROR, OMISSION, INTERRUPTION, LOSS OR DELAY IN
TRANSMISSION OR DELIVERY OF ANY DRAFT, NOTICE OR OTHER COMMUNICATION UNDER OR
RELATING TO ANY LETTER OF CREDIT (INCLUDING ANY DOCUMENT REQUIRED TO MAKE A
DRAWING THEREUNDER), ANY ERROR IN INTERPRETATION OF TECHNICAL TERMS OR ANY
CONSEQUENCE ARISING FROM CAUSES BEYOND THE CONTROL OF THE ISSUING BANK; PROVIDED
THAT THE FOREGOING SHALL NOT BE CONSTRUED TO EXCUSE THE ISSUING BANK FROM
LIABILITY TO THE APPLICABLE BORROWER TO THE EXTENT