IN ACTING, OR IN REFRAINING FROM ACTING, UNDER THIS AGREEMENT IN
ACCORDANCE WITH A REQUEST OF REQUIRED LENDERS, AND SUCH REQUEST AND ANY ACTION
TAKEN OR FAILURE TO ACT PURSUANT THERETO SHALL BE BINDING UPON THE LENDERS AND
ANY FUTURE HOLDERS OF A PARTICIPATION IN ANY LETTER OF CREDIT.
2.4.11
INDEMNIFICATION.
EACH LENDER SEVERALLY AGREES TO
INDEMNIFY EACH ISSUING BANK (TO THE EXTENT NOT PROMPTLY REIMBURSED BY THE
BORROWERS) TO THE EXTENT OF SUCH LENDER'S PERCENTAGE INTEREST FROM AND AGAINST
ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS,
JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS OF ANY KIND OR NATURE
WHATSOEVER THAT MAY BE IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST SUCH ISSUING
BANK BY REASON OF OR IN CONNECTION WITH THE ISSUANCE, EXECUTION AND DELIVERY OR
TRANSFER OF OR PAYMENT OR FAILURE TO PAY UNDER ANY LETTER OF CREDIT OR ANY
ACTUAL OR PROPOSED USE OF ANY LETTER OF CREDIT, INCLUDING ANY CLAIMS, DAMAGES,
LOSSES, LIABILITIES, COSTS OR EXPENSES WHICH ANY ISSUING BANK MAY INCUR BY
REASON OF OR IN CONNECTION WITH (A) THE FAILURE OF ANY OTHER LENDER TO FULFILL
OR COMPLY WITH ITS OBLIGATIONS TO ANY ISSUING BANK HEREUNDER (OTHER THAN ANY
OTHER LENDER'S OBLIGATION TO ADVANCE ITS PERCENTAGE INTEREST OF ANY REVOLVING
CREDIT LOAN UNDER SECTION 2.4.6 IN ORDER TO REIMBURSE THE APPLICABLE ISSUING
BANK IN RESPECT OF A PAYMENT MADE BY SUCH ISSUING BANK UPON A DRAFT PRESENTED
AND ACCEPTED UNDER A LETTER OF CREDIT) (BUT NOTHING HEREIN CONTAINED SHALL
AFFECT ANY RIGHTS THE BORROWERS MAY HAVE AGAINST ANY DEFAULTING LENDER) OR (B)
BY REASON OF OR ON ACCOUNT OF ANY ISSUING BANK ISSUING ANY LETTER OF CREDIT
WHICH SPECIFIES THAT THE TERM "BENEFICIARY" INCLUDED THEREIN INCLUDES ANY
SUCCESSOR BY OPERATION OF LAW OF THE NAMED BENEFICIARY, BUT WHICH LETTER OF
CREDIT DOES NOT REQUIRE THAT ANY DRAWING BY ANY SUCH SUCCESSOR BENEFICIARY BE
ACCOMPANIED BY A COPY OF A LEGAL DOCUMENT, SATISFACTORY TO THE APPLICABLE
ISSUING BANK, EVIDENCING THE APPOINTMENT OF SUCH SUCCESSOR BENEFICIARY; PROVIDED
THAT THE BORROWERS SHALL NOT BE REQUIRED TO INDEMNIFY ANY LENDER, ANY ISSUING
35
BANK OR THE AGENT FOR ANY CLAIMS, LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES,
PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS, AND NO
LENDER SHALL BE LIABLE FOR ANY PORTION OF SUCH CLAIMS, LIABILITIES, OBLIGATIONS,
LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR
DISBURSEMENTS, RESULTING FROM SUCH ISSUING BANK'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
WITHOUT LIMITATION OF THE FOREGOING, EACH LENDER AGREES TO
REIMBURSE ANY ISSUING BANK PROMPTLY UPON DEMAND FOR ITS PERCENTAGE INTEREST OF
ANY COSTS AND EXPENSES (INCLUDING REASONABLE FEES AND EXPENSES OF COUNSEL)
PAYABLE BY THE BORROWERS UNDER SECTIONS 12.1 OR 12.2 WITH RESPECT TO A LETTER OF
CREDIT ISSUED BY SUCH ISSUING BANK, TO THE EXTENT THAT SUCH ISSUING BANK IS NOT
PROMPTLY REIMBURSED FOR SUCH COSTS AND EXPENSES BY THE BORROWERS.
THE FAILURE
OF ANY LENDER TO REIMBURSE AN ISSUING BANK PROMPTLY UPON DEMAND FOR ITS
PERCENTAGE INTEREST OF ANY AMOUNT REQUIRED TO BE PAID BY THE LENDER TO SUCH