OPPOSED TO CONSEQUENTIAL OR EXEMPLARY, DAMAGES SUFFERED BY SUCH
BORROWER WHICH SUCH BORROWER PROVES WERE CAUSED BY THE L/C ISSUER'S WILLFUL
MISCONDUCT, BAD FAITH OR GROSS NEGLIGENCE OR THE L/C ISSUER'S WILLFUL OR GROSSLY
NEGLIGENT OR BAD FAITH 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.
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,
(I) IF THE L/C ISSUER HAS HONORED ANY FULL OR PARTIAL DRAWING REQUEST UNDER ANY
LETTER OF CREDIT AND SUCH DRAWING HAS RESULTED IN AN
46
L/C BORROWING AND THE CONDITIONS SET FORTH IN SECTION 4.02 TO A REVOLVING CREDIT
BORROWING CANNOT THEN BE MET, OR (II) IF, AS OF THE LETTER OF CREDIT EXPIRATION
DATE, ANY LETTER OF CREDIT MAY FOR ANY REASON REMAIN OUTSTANDING AND PARTIALLY
OR WHOLLY UNDRAWN, THE RELEVANT BORROWER SHALL PROMPTLY CASH COLLATERALIZE
(X) IN THE CASE OF CLAUSE (I), 100% AND (Y) IN THE CASE OF CLAUSE (II), 103%, IN
EACH CASE, THE THEN OUTSTANDING AMOUNT OF ALL L/C OBLIGATIONS (SUCH OUTSTANDING
AMOUNT TO BE DETERMINED AS OF THE DATE OF SUCH L/C BORROWING OR THE LETTER OF
CREDIT EXPIRATION DATE, AS THE CASE MAY BE) OR, IN THE CASE OF CLAUSE (II),
PROVIDE A BACK TO BACK LETTER OF CREDIT IN A FACE AMOUNT AT LEAST EQUAL TO 103%
OF THE THEN UNDRAWN AMOUNT OF SUCH LETTER OF CREDIT FROM AN ISSUER AND IN FORM
AND SUBSTANCE REASONABLY SATISFACTORY TO THE L/C ISSUER IN ITS REASONABLE
DISCRETION.
ANY LETTER OF CREDIT THAT IS SO CASH COLLATERALIZED OR IN RESPECT
OF WHICH SUCH A BACK-TO-BACK LETTER OF CREDIT SHALL HAVE BEEN ISSUED SHALL BE
DEEMED NO LONGER OUTSTANDING FOR PURPOSES OF THIS AGREEMENT.
FOR PURPOSES
HEREOF, "CASH COLLATERALIZE" MEANS TO PLEDGE AND DEPOSIT WITH OR DELIVER TO THE
ADMINISTRATIVE AGENT, FOR THE BENEFIT OF THE L/C ISSUER AND THE LENDERS, AS
COLLATERAL FOR THE L/C OBLIGATIONS, CASH OR DEPOSIT ACCOUNT BALANCES ("CASH
COLLATERAL") PURSUANT TO DOCUMENTATION IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE ADMINISTRATIVE AGENT AND THE L/C ISSUER (WHICH DOCUMENTS ARE
HEREBY CONSENTED TO BY THE LENDERS).
DERIVATIVES OF SUCH TERM HAVE
CORRESPONDING MEANINGS.
CASH COLLATERAL SHALL BE MAINTAINED IN DEPOSIT ACCOUNTS
DESIGNATED BY THE ADMINISTRATIVE AGENT AND WHICH IS UNDER THE SOLE DOMINION AND
CONTROL OF THE ADMINISTRATIVE AGENT AND SHALL BE DEPOSITED IN AN
INTEREST-BEARING