Common use of Facility LCS Clause in Contracts

Facility LCS. (a) The LC Issuer hereby agrees, on the terms and conditions set forth in this Agreement, to issue stand-by and commercial Facility LCs in Dollars or an Agreed Currency for the account of the applicable Borrower (each, a "FACILITY LC") and to renew, extend, increase, decrease or otherwise modify each Facility LC (each a "MODIFICATION"), from time to time from and including the date of this Agreement and prior to the Revolving Loan Termination Date (or, if earlier, the date of termination in whole of the Aggregate Revolving Loan Commitment pursuant to Section 2.7 hereof or ----------- the Commitments pursuant to Section 8.1 hereof) upon the request of the ----------- applicable Borrower or, in the case of the Non-U.S. Subsidiary Borrower, upon the request of the Borrower on its behalf; provided, that immediately -------- after each such Facility LC is issued or Modified, (i) the aggregate Dollar Amount of the outstanding LC Obligations shall not exceed $30,000,000, (ii) the Dollar Amount of all Eurocurrency Loans and Facility LCs in Agreed Currencies other than Dollars is less than or equal to the Maximum Eurocurrency Amount, (iii) the Revolving Credit Obligations shall not exceed the Aggregate Revolving Loan Commitment, (iv) the aggregate outstanding principal Dollar Amount of all Revolving Loans and Facility LCs made to or issued for the account of the Non-U.S. Subsidiary Borrower shall not exceed the Maximum Non-U.S. Subsidiary Borrower Amount and (v) the conditions precedent set forth in Section 4.3 shall have been satisfied; provided, ----------- -------- further, that if the applicable Borrower has requested a Lender other than ------- Bank One to act as LC Issuer with respect to the issuance or Modification of a particular Facility LC, such issuance or Modification shall be made only in the sole discretion of such Lender. No Facility LC shall have an expiry date later than the day which is two years after the Revolving Loan Termination Date; provided that any Facility LC with a one-year term may provide for the renewal thereof for additional one-year periods (which in no event shall extend beyond the date which is two years after the Revolving Loan Termination Date). (b) On the date hereof with respect to the Existing LCs and upon the issuance or Modification by the LC Issuer of a Facility LC in accordance with this Section 2.23, the LC Issuer shall be deemed, without further ------------ action by any party hereto, to have sold to each Lender, and each Lender shall be deemed, without further action by any party hereto, to have purchased from the LC Issuer, a participation in such Facility LC (and each Modification thereof) and the related LC Obligations in an amount equal to the stated amount available for drawing under the applicable Facility LC and any such related LC Obligations, multiplied by such Lender's Revolving Loan Percentage, provided, however, that no Lender's participation shall extend -------- ------- to Reimbursement Obligations or amounts available for drawing under outstanding Facility LCs to the extent such Obligations and amounts have been cash collateralized in accordance with the terms of Section 2.23(m). --------------- Such participation shall constitute usage of each such Lenders' Revolving Loan Commitment. (c) Subject to subsection (a), the applicable Borrower (or in the case of the Non-U.S. Subsidiary Borrower, the Borrower on its behalf) shall give the LC Issuer notice prior to 10:00 a.m. (Chicago time) at least (i) three Business Days for Dollar denominated Facility LCs and (ii) five Business Days for Facility LCs denominated in any Agreed Currency other than Dollars prior to the proposed date of issuance or Modification of each Facility LC, specifying the beneficiary, the Agreed Currency in which the Facility LC is to be denominated, the proposed date of issuance (or Modification) and the expiry date of such Facility LC, and describing the proposed terms of such Facility LC and the nature of the transactions proposed to be supported thereby. Upon receipt of such notice, the LC Issuer shall promptly notify the Agent, and the Agent shall promptly notify each Lender, of the contents thereof and of the amount of such Lender's participation in such proposed Facility LC. The issuance or Modification by the LC Issuer of any Facility LC shall, in addition to the conditions precedent set forth in Article IV (the satisfaction of which the LC Issuer ---------- shall have no duty to ascertain), be subject to the conditions precedent that such Facility LC shall be satisfactory to the LC Issuer and that the applicable Borrower shall have executed and delivered such application agreement and/or such other instruments and agreements relating to such Facility LC as the LC Issuer shall have reasonably requested (each, a "FACILITY LC APPLICATION AGREEMENT"). In the event of any conflict between the terms of this Agreement and the terms of any Facility LC Application Agreement, the terms of this Agreement shall control. (d) The Borrowers shall pay to the Agent, for the account of the Lenders ratably in accordance with their respective Revolving Loan Percentages (except as provided in Section 8.2), a letter of credit fee ----------- equal to (i) a percentage per annum equal to the Applicable Stand-by Facility LC Fee in effect from time to time on the average daily aggregate amount available for drawings under all stand-by Facility LCs outstanding during such quarter and (ii) a percentage per annum equal to the Applicable Commercial Facility LC Fee in effect from time to time on the average daily aggregate amount available for drawings under all commercial Facility LCs outstanding during such quarter (it being understood and agreed that the Non-U.S. Subsidiary Borrower shall be liable to pay such fees only with respect to Facility LCs issued for its account). Each such fee under clauses ------- (i) and (ii) shall be payable in arrears on each Payment Date and on the --- ---- Revolving Loan Termination Date (or, if earlier, the date of termination in whole of the Aggregate Revolving Loan Commitment pursuant to Section 2.7 ----------- hereof or the Commitments pursuant to Section 8.1 hereof). The applicable ----------- Borrower shall pay to the LC Issuer on the date of issuance of each Facility LC, a Facility LC fronting fee equal to the Applicable Facility LC Fronting Fee of the stated amount available for drawing under each such Facility LC, and such additional fees and expenses relating to the issuance, Modification, and payment of Facility LCs in the amounts and at the times agreed between the Borrower and the LC Issuer (it being understood and agreed that the Non-U.S. Subsidiary Borrower shall be liable to pay such fronting fee only with respect to Facility LCs issued for its account). The LC Issuer shall furnish to the Agent upon request its calculations with respect to the amount of any fee payable under this subsection (d). (e) Upon receipt from the beneficiary of any Facility LC of any demand for payment under such Facility LC, the LC Issuer shall notify the Agent and the Agent shall promptly notify the applicable Borrower and each other Lender as to the amount to be paid by the LC Issuer as a result of such demand and the proposed payment date (the "LC PAYMENT DATE"). The responsibility of the LC Issuer to the applicable Borrower and each Lender shall be only to determine that the documents (including each demand for payment) delivered under each Facility LC in connection with such presentment shall be in conformity in all material respects with such Facility LC. The LC Issuer shall endeavor to exercise the same care in the issuance and administration of the Facility LCs as it does with respect to letters of credit in which no participations are granted, it being understood that in the absence of any gross negligence or willful misconduct by the LC Issuer, each Lender shall be unconditionally and irrevocably liable without regard to the occurrence of any Default or any condition precedent whatsoever, to reimburse the LC Issuer on demand for (i) such Lender's Revolving Loan Percentage of the amount of each payment made by the LC Issuer under each Facility LC to the extent such amount is not reimbursed by the applicable Borrower pursuant to subsection (f) below plus (ii) interest on the foregoing amount to be reimbursed by such Lender, for each day from the date of the LC Issuer's demand for such reimbursement (or, if such demand is made after 11:00 a.m. (Chicago time) on such date, from the next succeeding Business Day) to the date on which such Lender pays the amount to be reimbursed by it, at a rate of interest per annum equal to the Federal Funds Effective Rate for such day; provided, however, that upon any -------- ------- such demand by the LC Issuer for reimbursement from the Lenders of the amounts described in clauses (i) and (ii) above (the "LC REIMBURSEMENT AMOUNTS"), the ----------- ---- LC Reimbursement Amounts shall be immediately and automatically converted to and redenominated in Dollars equal to the Dollar Amount of such LC Reimbursement Amounts determined as of the date of such conversion. (f) The applicable Borrower shall be irrevocably and unconditionally obligated to reimburse the LC Issuer on or by the applicable LC Payment Date for any amounts to be paid by the LC Issuer upon any drawing under any Facility LC, without presentment, demand, protest or other formalities of any kind (it being understood and agreed that the Non-U.S. Subsidiary Borrower shall not be liable to reimburse any LC Issuer for any amounts attributable to drawings under Facility LCs issued for the account of the Borrower); provided, that neither the Borrowers nor any Lender shall -------- hereby be precluded from asserting any claim for direct (but not consequential) damages suffered by the applicable Borrower or such Lender to the extent, but only to the extent, caused by (i) the willful misconduct or gross negligence of the LC Issuer in determining whether a request presented under any Facility LC issued by it complied with the terms of such Facility LC or (ii) the LC Issuer's failure to pay under any Facility LC issued by it after the presentation to it of a request strictly complying with the terms and conditions of such Facility LC. All such amounts paid by the LC Issuer and remaining unpaid by the applicable Borrower after the applicable LC Payment Date shall bear interest, payable on demand, for each day until paid, at a rate per annum equal to the sum of 2% plus the rate applicable to Floating Rate Advances for such day. The LC Issuer will pay to each Lender ratably in accordance with its Revolving Loan Percentage all amounts received by it from the applicable Borrower for application in payment, in whole or in part, of the Reimbursement Obligation in respect of any Facility LC issued by the LC Issuer, but only to the extent such Lender has made payment to the LC Issuer in respect of such Facility LC pursuant to subsection (e). Subject to the terms and conditions of this Agreement (including without limitation the submission of a Borrowing Notice in compliance with Section 2.9 and the satisfaction of the applicable ----------- conditions precedent set forth in Article IV), either Borrower may request ---------- an Advance or, in the case of the Borrower only, a Swing Line Loan hereunder for the purpose of satisfying any Reimbursement Obligation. (g) If after the date hereof, the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the LC Issuer or any Lender with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency shall impose, modify or deem applicable any tax, reserve, special deposit or similar requirement against or with respect to or measured by reference to Facility LCs issued or to be issued hereunder or participation therein, and the result shall be to increase the cost to the LC Issuer or any Lender of issuing or maintaining any Facility LC or any participation therein, or reduce any amount receivable hereunder by the LC Issuer or any Lender in respect of any Facility LC (which increase in cost, or reduction in amount receivable, shall be the result of such Lender's or the LC Issuer's reasonable allocation of the aggregate of such increases or reductions resulting from such event), then, upon demand by the LC Issuer or such Lender, each Borrower agrees, as applicable, to pay to the LC Issuer or such Lender, from time to time as specified by the LC Issuer or such Lender, such additional amounts as shall be sufficient to compensate the LC Issuer or such Lender for such increased costs or reductions in amounts received by the LC Issuer or such Lender (it being understood and agreed that the Non-U.S. Subsidiary Borrower shall not be liable to compensate any LC Issuer for any such costs or reductions in amounts received with respect to Facility LCs issued for the account of the Borrower). A certificate of the LC Issuer or such Lender submitted by the LC Issuer or such Lender to the applicable Borrower shall be conclusive as to the amount thereof in the absence of manifest error. (h) The Borrowers' obligations under this Section 2.23 shall be ------------ absolute and unconditional under any and all circumstances and irrespective of any set off, counterclaim or defense to payment which the applicable Borrower may have or have had against the LC Issuer, any Lender or any beneficiary of a Facility LC. Each Borrower further agrees with the LC Issuer and the Lenders that the LC Issuer and the Lenders shall not be responsible for, and such Borrower's Reimbursement Obligation in respect of any Facility LC shall not be affected by, among other things, the validity or genuineness of documents or of any endorsements thereon, even if such documents should in fact prove to be in any or all respects invalid, fraudulent or forged, or any dispute between or among such Borrower, any of its Subsidiaries, the beneficiary of any Facility LC or any financing institution or other party to whom any Facility LC may be transferred or any claims or defenses whatsoever of such Borrower or of any of its Subsidiaries against the beneficiary of any Facility LC or any such transferee. Absent willful misconduct or gross negligence, the LC Issuer shall not be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Facility LC. Each Borrower agrees that any action taken or omitted by the LC Issuer or any Lender under or in connection with each Facility LC and the related drafts and documents, if done without gross negligence or willful misconduct, shall be binding upon such Borrower and shall not put the LC Issuer or any Lender under any liability to such Borrower. Nothing in this subsection (h) is intended to limit the right of either Borrower to make a claim against the LC Issuer for damages as contemplated by the proviso to the first sentence of subsection (f) above. (i) To the extent not inconsistent with subsection (h) above, the LC Issuer shall be entitled to rely, and shall be fully protected in relying upon, any Facility LC, draft, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel, independent accountants and other experts selected by the LC Issuer. The LC Issuer shall be fully justified in failing or refusing to take any action under this Agreement unless it shall first have received such advice or concurrence of the Required Lenders as it reasonably deems appropriate or it shall first be indemnified to its reasonable satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. 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Facility LCS. (a) The LC Issuer hereby agrees, on the terms and conditions set forth in this Agreement, to issue stand-by and commercial Facility LCs in Dollars or an Agreed Currency for the account of the applicable Borrower (each, a "FACILITY Facility LC") and to renew, extend, increase, decrease or otherwise modify each Facility LC (each a "MODIFICATIONModification"), from time to time from and including the date of this Agreement and prior to the Revolving Loan Facility Termination Date (or, if earlier, the date of termination in whole of the Aggregate Revolving Loan Commitment pursuant to Section 2.7 hereof or ----------- the Commitments pursuant to Section 8.1 hereof) upon the request of the ----------- applicable Borrower or, in the case of the Non-U.S. Subsidiary Borrower, upon the request of the Borrower on its behalf; provided, provided that immediately -------- after each such Facility LC is issued or Modified, (i) the aggregate Dollar Amount of the outstanding LC Obligations shall not exceed $30,000,00020,000,000, (ii) the Aggregate Outstanding Credit Exposure shall not exceed the Aggregate Commitment and (iii) the Dollar Amount of all Eurocurrency Loans and Facility LCs in Agreed Currencies other than Dollars is less than or equal to the Maximum Eurocurrency Amount, (iii) the Revolving Credit Obligations shall not exceed the Aggregate Revolving Loan Commitment, (iv) the aggregate outstanding principal Dollar Amount of all Revolving Loans and Facility LCs made to or issued for the account of the Non-U.S. Subsidiary Borrower shall not exceed the Maximum Non-U.S. Subsidiary Borrower Amount and (v) the conditions precedent set forth in Section 4.3 shall have been satisfied; provided, ----------- -------- further, that if the applicable Borrower has requested a Lender other than ------- Bank One First Chicago to act as LC Issuer with respect to the issuance or Modification of a particular Facility LC, such issuance or Modification shall be made only in the sole discretion of such Lender. No Facility LC shall have an expiry date later than the earlier of (i) the fifth Business Day prior to the Facility Termination Date and (ii) the day which is two years one year after the Revolving Loan Termination Date; provided that any Facility LC with a one-year term may provide for date of issuance (or the renewal thereof for additional one-year periods (which in no event shall extend beyond the date which is two years after the Revolving Loan Termination Date)most recent Modification) thereof. (b) On the date hereof with respect to the Existing LCs and upon the issuance or Modification by the LC Issuer of a Facility LC in accordance with this Section 2.232.19, the LC Issuer shall be deemed, without further ------------ action by any party hereto, to have sold to each Lender, and each Lender shall be deemed, without further action by any party hereto, to have purchased from the LC Issuer, a participation in such Facility LC (and each Modification thereof) and the related LC Obligations in an amount equal to the stated amount available for drawing under the applicable Facility LC and any such related LC Obligations, multiplied by such Lender's Revolving Loan Percentage, provided, however, that no Lender's participation shall extend -------- ------- to Reimbursement Obligations or amounts available for drawing under outstanding Facility LCs to the extent such Obligations and amounts have been cash collateralized in accordance with the terms of Section 2.23(m). --------------- Such participation shall constitute usage of each such Lenders' Revolving Loan Commitment. (c) Subject to subsection (a), the applicable Borrower (or in the case of the Non-U.S. Subsidiary Borrower, the Borrower on its behalf) shall give the LC Issuer notice prior to 10:00 a.m. (Chicago time) at least (i) three Business Days for Dollar denominated Facility LCs and (ii) five Business Days for Facility LCs denominated in any Agreed Currency other than Dollars prior to the proposed date of issuance or Modification of each Facility LC, specifying the beneficiary, the Agreed Currency in which the Facility LC is to be denominated, the proposed date of issuance (or Modification) and the expiry date of such Facility LC, and describing the proposed terms of such Facility LC and the nature of the transactions proposed to be supported thereby. Upon receipt of such notice, the LC Issuer shall promptly notify the Agent, and the Agent shall promptly notify each Lender, of the contents thereof and of the amount of such Lender's participation in such proposed Facility LC. The issuance or Modification by the LC Issuer of any Facility LC shall, in addition to the conditions precedent set forth in Article IV (the satisfaction of which the LC Issuer ---------- shall have no duty to ascertain), be subject to the conditions precedent that such Facility LC shall be satisfactory to the LC Issuer and that the applicable Borrower shall have executed and delivered such application agreement and/or such other instruments and agreements relating to such Facility LC as the LC Issuer shall have reasonably requested (each, a "FACILITY LC APPLICATION AGREEMENT"). In the event of any conflict between the terms of this Agreement and the terms of any Facility LC Application Agreement, the terms of this Agreement shall control. (d) The Borrowers shall pay to the Agent, for the account of the Lenders ratably in accordance with their respective Revolving Loan Percentages (except as provided in Section 8.2), a letter of credit fee ----------- equal to (i) a percentage per annum equal to the Applicable Stand-by Facility LC Fee in effect from time to time on the average daily aggregate amount available for drawings under all stand-by Facility LCs outstanding during such quarter and (ii) a percentage per annum equal to the Applicable Commercial Facility LC Fee in effect from time to time on the average daily aggregate amount available for drawings under all commercial Facility LCs outstanding during such quarter (it being understood and agreed that the Non-U.S. Subsidiary Borrower shall be liable to pay such fees only with respect to Facility LCs issued for its account). Each such fee under clauses ------- (i) and (ii) shall be payable in arrears on each Payment Date and on the --- ---- Revolving Loan Termination Date (or, if earlier, the date of termination in whole of the Aggregate Revolving Loan Commitment pursuant to Section 2.7 ----------- hereof or the Commitments pursuant to Section 8.1 hereof). The applicable ----------- Borrower shall pay to the LC Issuer on the date of issuance of each Facility LC, a Facility LC fronting fee equal to the Applicable Facility LC Fronting Fee of the stated amount available for drawing under each such Facility LC, and such additional fees and expenses relating to the issuance, Modification, and payment of Facility LCs in the amounts and at the times agreed between the Borrower and the LC Issuer (it being understood and agreed that the Non-U.S. Subsidiary Borrower shall be liable to pay such fronting fee only with respect to Facility LCs issued for its account). The LC Issuer shall furnish to the Agent upon request its calculations with respect to the amount of any fee payable under this subsection (d). (e) Upon receipt from the beneficiary of any Facility LC of any demand for payment under such Facility LC, the LC Issuer shall notify the Agent and the Agent shall promptly notify the applicable Borrower and each other Lender as to the amount to be paid by the LC Issuer as a result of such demand and the proposed payment date (the "LC PAYMENT DATE"). The responsibility of the LC Issuer to the applicable Borrower and each Lender shall be only to determine that the documents (including each demand for payment) delivered under each Facility LC in connection with such presentment shall be in conformity in all material respects with such Facility LC. The LC Issuer shall endeavor to exercise the same care in the issuance and administration of the Facility LCs as it does with respect to letters of credit in which no participations are granted, it being understood that in the absence of any gross negligence or willful misconduct by the LC Issuer, each Lender shall be unconditionally and irrevocably liable without regard to the occurrence of any Default or any condition precedent whatsoever, to reimburse the LC Issuer on demand for (i) such Lender's Revolving Loan Percentage of the amount of each payment made by the LC Issuer under each Facility LC to the extent such amount is not reimbursed by the applicable Borrower pursuant to subsection (f) below plus (ii) interest on the foregoing amount to be reimbursed by such Lender, for each day from the date of the LC Issuer's demand for such reimbursement (or, if such demand is made after 11:00 a.m. (Chicago time) on such date, from the next succeeding Business Day) to the date on which such Lender pays the amount to be reimbursed by it, at a rate of interest per annum equal to the Federal Funds Effective Rate for such day; provided, however, that upon any -------- ------- such demand by the LC Issuer for reimbursement from the Lenders of the amounts described in clauses (i) and (ii) above (the "LC REIMBURSEMENT AMOUNTS"), the ----------- ---- LC Reimbursement Amounts shall be immediately and automatically converted to and redenominated in Dollars equal to the Dollar Amount of such LC Reimbursement Amounts determined as of the date of such conversion. (f) The applicable Borrower shall be irrevocably and unconditionally obligated to reimburse the LC Issuer on or by the applicable LC Payment Date for any amounts to be paid by the LC Issuer upon any drawing under any Facility LC, without presentment, demand, protest or other formalities of any kind (it being understood and agreed that the Non-U.S. Subsidiary Borrower shall not be liable to reimburse any LC Issuer for any amounts attributable to drawings under Facility LCs issued for the account of the Borrower); provided, that neither the Borrowers nor any Lender shall -------- hereby be precluded from asserting any claim for direct (but not consequential) damages suffered by the applicable Borrower or such Lender to the extent, but only to the extent, caused by (i) the willful misconduct or gross negligence of the LC Issuer in determining whether a request presented under any Facility LC issued by it complied with the terms of such Facility LC or (ii) the LC Issuer's failure to pay under any Facility LC issued by it after the presentation to it of a request strictly complying with the terms and conditions of such Facility LC. All such amounts paid by the LC Issuer and remaining unpaid by the applicable Borrower after the applicable LC Payment Date shall bear interest, payable on demand, for each day until paid, at a rate per annum equal to the sum of 2% plus the rate applicable to Floating Rate Advances for such day. The LC Issuer will pay to each Lender ratably in accordance with its Revolving Loan Percentage all amounts received by it from the applicable Borrower for application in payment, in whole or in part, of the Reimbursement Obligation in respect of any Facility LC issued by the LC Issuer, but only to the extent such Lender has made payment to the LC Issuer in respect of such Facility LC pursuant to subsection (e). Subject to the terms and conditions of this Agreement (including without limitation the submission of a Borrowing Notice in compliance with Section 2.9 and the satisfaction of the applicable ----------- conditions precedent set forth in Article IV), either Borrower may request ---------- an Advance or, in the case of the Borrower only, a Swing Line Loan hereunder for the purpose of satisfying any Reimbursement Obligation. (g) If after the date hereof, the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the LC Issuer or any Lender with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency shall impose, modify or deem applicable any tax, reserve, special deposit or similar requirement against or with respect to or measured by reference to Facility LCs issued or to be issued hereunder or participation therein, and the result shall be to increase the cost to the LC Issuer or any Lender of issuing or maintaining any Facility LC or any participation therein, or reduce any amount receivable hereunder by the LC Issuer or any Lender in respect of any Facility LC (which increase in cost, or reduction in amount receivable, shall be the result of such Lender's or the LC Issuer's reasonable allocation of the aggregate of such increases or reductions resulting from such event), then, upon demand by the LC Issuer or such Lender, each Borrower agrees, as applicable, to pay to the LC Issuer or such Lender, from time to time as specified by the LC Issuer or such Lender, such additional amounts as shall be sufficient to compensate the LC Issuer or such Lender for such increased costs or reductions in amounts received by the LC Issuer or such Lender (it being understood and agreed that the Non-U.S. Subsidiary Borrower shall not be liable to compensate any LC Issuer for any such costs or reductions in amounts received with respect to Facility LCs issued for the account of the Borrower). A certificate of the LC Issuer or such Lender submitted by the LC Issuer or such Lender to the applicable Borrower shall be conclusive as to the amount thereof in the absence of manifest error. (h) The Borrowers' obligations under this Section 2.23 shall be ------------ absolute and unconditional under any and all circumstances and irrespective of any set off, counterclaim or defense to payment which the applicable Borrower may have or have had against the LC Issuer, any Lender or any beneficiary of a Facility LC. Each Borrower further agrees with the LC Issuer and the Lenders that the LC Issuer and the Lenders shall not be responsible for, and such Borrower's Reimbursement Obligation in respect of any Facility LC shall not be affected by, among other things, the validity or genuineness of documents or of any endorsements thereon, even if such documents should in fact prove to be in any or all respects invalid, fraudulent or forged, or any dispute between or among such Borrower, any of its Subsidiaries, the beneficiary of any Facility LC or any financing institution or other party to whom any Facility LC may be transferred or any claims or defenses whatsoever of such Borrower or of any of its Subsidiaries against the beneficiary of any Facility LC or any such transferee. Absent willful misconduct or gross negligence, the LC Issuer shall not be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Facility LC. Each Borrower agrees that any action taken or omitted by the LC Issuer or any Lender under or in connection with each Facility LC and the related drafts and documents, if done without gross negligence or willful misconduct, shall be binding upon such Borrower and shall not put the LC Issuer or any Lender under any liability to such Borrower. Nothing in this subsection (h) is intended to limit the right of either Borrower to make a claim against the LC Issuer for damages as contemplated by the proviso to the first sentence of subsection (f) above. (i) To the extent not inconsistent with subsection (h) above, the LC Issuer shall be entitled to rely, and shall be fully protected in relying upon, any Facility LC, draft, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel, independent accountants and other experts selected by the LC Issuer. The LC Issuer shall be fully justified in failing or refusing to take any action under this Agreement unless it shall first have received such advice or concurrence of the Required Lenders as it reasonably deems appropriate or it shall first be indemnified to its reasonable satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. 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