the relevant Issuing Bank under or in
connection with any Letter of Credit, if taken or omitted in the absence of
gross negligence or willful misconduct, shall not result in any liability of
such Issuing Bank to the Borrower or any Lender.
In determining whether drafts
and other documents presented under a Letter of Credit comply with the terms
thereof, the Issuing Bank may accept documents that appear on their face to be
in order, without responsibility for further investigation, regardless of any
notice or information to the contrary and, in making any payment under any
Letter of Credit, the Issuing Bank may rely exclusively on the documents
presented to it under such Letter of Credit as to any and all matters set forth
therein, including reliance on the amount of any draft presented under such
Letter of Credit, whether or not the amount due to the beneficiary thereunder
equals the amount of such draft and whether or not any document presented
pursuant to such Letter of Credit proves to be insufficient in any respect, if
such document on its face appears to be in order, and whether or not any other
statement or any other document presented pursuant to such Letter of Credit
proves to be forged or invalid or any statement therein proves to be inaccurate
or untrue in any respect whatsoever, and any noncompliance in any immaterial
respect of the documents presented under such Letter of Credit with the terms
thereof shall, in each case, be deemed not to constitute willful misconduct or
gross negligence of the Issuing Bank.
(K)
SCHEDULE 2.3(K) CONTAINS A SCHEDULE OF
CERTAIN LETTERS OF CREDIT ISSUED PRIOR TO THE CLOSING DATE (THE "EXISTING
LETTERS OF CREDIT") FOR THE ACCOUNT OF THE APPLICABLE BORROWER BY THE ISSUERS
SET FORTH ON SUCH SCHEDULE 2.3(K).
ON THE CLOSING DATE, (I) SUCH LETTERS OF
CREDIT, TO THE EXTENT OUTSTANDING, SHALL BE AUTOMATICALLY AND WITHOUT FURTHER
ACTION BY THE PARTIES THERETO CONVERTED TO LETTERS OF CREDIT ISSUED PURSUANT TO
THIS SECTION 2.3 FOR THE ACCOUNT OF THE APPLICABLE BORROWER AND SUBJECT TO THE
PROVISIONS HEREOF, AND FOR THIS PURPOSE THE FEES SPECIFIED IN SECTION 2.10 SHALL
BE PAYABLE (IN SUBSTITUTION FOR ANY FEES SET FORTH IN THE APPLICABLE LETTER OF
CREDIT REIMBURSEMENT AGREEMENTS OR APPLICATIONS RELATING TO SUCH LETTERS OF
CREDIT) AS IF SUCH LETTERS OF CREDIT HAD BEEN ISSUED ON THE CLOSING DATE, (II)
THE ISSUING BANKS OF SUCH LETTERS OF CREDIT SHALL BE DEEMED TO BE "ISSUING
BANKS" HEREUNDER SOLELY FOR THE PURPOSE OF MAINTAINING SUCH LETTERS OF CREDIT,
FOR PURPOSES OF SECTION 2.19 RELATING TO THE OBLIGATION TO PROVIDE THE
APPROPRIATE FORMS, CERTIFICATES AND STATEMENTS TO THE BORROWER AND THE
ADMINISTRATIVE AGENT AND ANY UPDATES REQUIRED BY SECTION 2.19 AND FOR PURPOSES
OF SECTION 2.6 RELATING TO THE ENTRIES TO BE MADE IN THE REGISTER, (III) THE
DOLLAR EQUIVALENT OF THE FACE AMOUNT OF SUCH LETTERS OF CREDIT SHALL BE INCLUDED
IN THE CALCULATION OF LETTER OF CREDIT OBLIGATIONS AND (IV) ALL LIABILITIES OF