TO ANY LETTER OF CREDIT OR LETTER OF CREDIT APPLICATION.
EACH BORROWER AND EACH
44
DOMESTIC SUBSIDIARY OF A BORROWER HEREBY ASSUMES ALL RISKS OF THE ACTS OR
OMISSIONS OF ANY BENEFICIARY OR TRANSFEREE WITH RESPECT TO THE USE OF ANY LETTER
OF CREDIT; PROVIDED, HOWEVER, THAT THIS ASSUMPTION IS NOT INTENDED TO, AND SHALL
NOT, PRECLUDE ANY BORROWER'S PURSUING SUCH RIGHTS AND REMEDIES AS IT MAY HAVE
AGAINST THE BENEFICIARY OR TRANSFEREE AT LAW OR UNDER ANY OTHER AGREEMENT.
NONE
OF THE L/C ISSUER, ANY AGENT-RELATED PERSON, NOR ANY OF THE RESPECTIVE
CORRESPONDENTS, PARTICIPANTS OR ASSIGNEES OF THE L/C ISSUER, SHALL BE LIABLE OR
RESPONSIBLE FOR ANY OF THE MATTERS DESCRIBED IN CLAUSES (I) THROUGH (V) OF
SECTION 2.03(E); PROVIDED, HOWEVER, THAT ANYTHING IN SUCH CLAUSES TO THE
CONTRARY NOTWITHSTANDING, THE BORROWERS MAY HAVE A CLAIM AGAINST THE L/C ISSUER,
AND THE L/C ISSUER MAY BE LIABLE TO THE BORROWERS, TO THE EXTENT, BUT ONLY TO
THE EXTENT, OF ANY DIRECT, AS OPPOSED TO CONSEQUENTIAL, PUNITIVE OR EXEMPLARY,
DAMAGES SUFFERED BY THE BORROWERS WHICH THE BORROWERS PROVE WERE CAUSED BY THE
L/C ISSUER'S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OR THE L/C ISSUER'S WILLFUL
FAILURE TO PAY UNDER ANY LETTER OF CREDIT AFTER THE PRESENTATION TO IT BY THE
BENEFICIARY OF A SIGHT DRAFT AND CERTIFICATE(S) STRICTLY COMPLYING WITH THE
TERMS AND CONDITIONS OF A LETTER OF CREDIT AS FINALLY DETERMINED BY A COURT OF
COMPETENT JURISDICTION.
IN FURTHERANCE AND NOT IN LIMITATION OF THE FOREGOING,
THE L/C ISSUER 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 THE L/C ISSUER SHALL NOT BE RESPONSIBLE FOR THE
VALIDITY OR SUFFICIENCY OF ANY INSTRUMENT TRANSFERRING OR ASSIGNING OR
PURPORTING TO TRANSFER OR ASSIGN A LETTER OF CREDIT OR THE RIGHTS OR BENEFITS
THEREUNDER OR PROCEEDS THEREOF, IN WHOLE OR IN PART, WHICH MAY PROVE TO BE
INVALID OR INEFFECTIVE FOR ANY REASON.
(G)
CASH COLLATERAL.
UPON THE REQUEST OF THE ADMINISTRATIVE AGENT, IF,
AS OF THE LETTER OF CREDIT EXPIRATION DATE, ANY LETTER OF CREDIT OR L/C GUARANTY
FOR ANY REASON REMAINS OUTSTANDING AND PARTIALLY OR WHOLLY UNDRAWN, THE
BORROWERS SHALL IMMEDIATELY CASH COLLATERALIZE 105% OF THE TOTAL L/C EXPOSURES
AS OF SUCH DATE.
SECTION 2.05 AND 9.02(C) SET FORTH CERTAIN ADDITIONAL
REQUIREMENTS TO DELIVER CASH COLLATERAL HEREUNDER.
FOR PURPOSES OF THIS
SECTION 2.03, SECTION 2.05 AND SECTION 9.02(C), "CASH COLLATERALIZE" MEANS TO
PLEDGE AND DEPOSIT WITH OR DELIVER TO THE ADMINISTRATIVE AGENT (OR WITH AND TO A
BANK DESIGNATED BY THE ADMINISTRATIVE AGENT TO BE HELD IN A DEPOSIT ACCOUNT
SUBJECT TO A CONTROL AGREEMENT), FOR THE BENEFIT OF THE L/C ISSUER OR THE
ADMINISTRATIVE AGENT AND THE REVOLVING LENDERS, AS COLLATERAL FOR THE TOTAL L/C
EXPOSURES, CASH OR DEPOSIT ACCOUNT BALANCES PURSUANT TO DOCUMENTATION IN FORM
AND SUBSTANCE SATISFACTORY TO THE ADMINISTRATIVE AGENT AND THE L/C ISSUER (WHICH
DOCUMENTS ARE HEREBY CONSENTED TO BY THE LENDERS).
DERIVATIVES OF THE TERM