TO THE
EXTENT, BUT ONLY TO THE EXTENT, OF ANY DIRECT, AS OPPOSED TO CONSEQUENTIAL OR
EXEMPLARY, DAMAGES SUFFERED BY THE COMPANY WHICH THE COMPANY PROVES 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
43
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 L/C BORROWING, OR (II) IF,
AS OF THE LETTER OF CREDIT EXPIRATION DATE, ANY L/C OBLIGATION FOR ANY REASON
REMAINS OUTSTANDING, THE COMPANY SHALL, IN EACH CASE, IMMEDIATELY CASH
COLLATERALIZE THE THEN OUTSTANDING AMOUNT OF ALL L/C OBLIGATIONS.
SECTION 2.04
AND SECTION 8.02 SET FORTH CERTAIN ADDITIONAL REQUIREMENTS TO DELIVER CASH
COLLATERAL HEREUNDER.
FOR PURPOSES OF THIS SECTION 2.03, SECTION 2.04 AND
SECTION 8.02, "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 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 SUCH TERM HAVE CORRESPONDING MEANINGS.
THE COMPANY HEREBY GRANTS
TO THE ADMINISTRATIVE AGENT, FOR THE BENEFIT OF THE L/C ISSUER AND THE LENDERS,
A SECURITY INTEREST IN ALL SUCH CASH, DEPOSIT ACCOUNTS AND ALL BALANCES THEREIN
AND ALL PROCEEDS OF THE FOREGOING.
CASH COLLATERAL SHALL BE MAINTAINED IN
BLOCKED, NON-INTEREST BEARING DEPOSIT ACCOUNTS AT BANK OF AMERICA.
IF AT ANY
TIME THE ADMINISTRATIVE AGENT DETERMINES THAT ANY FUNDS HELD AS CASH COLLATERAL
ARE SUBJECT TO ANY RIGHT OR CLAIM OF ANY PERSON OTHER THAN THE ADMINISTRATIVE
AGENT OR THAT THE TOTAL AMOUNT OF SUCH FUNDS IS LESS THAN THE AGGREGATE
OUTSTANDING AMOUNT OF ALL L/C OBLIGATIONS, THE COMPANY WILL, FORTHWITH UPON
DEMAND BY THE ADMINISTRATIVE AGENT, PAY TO THE ADMINISTRATIVE AGENT, AS
ADDITIONAL FUNDS TO BE DEPOSITED AS CASH COLLATERAL, AN AMOUNT EQUAL TO THE
EXCESS OF (X) SUCH AGGREGATE OUTSTANDING AMOUNT OVER (Y) THE TOTAL AMOUNT OF
FUNDS, IF ANY, THEN HELD AS CASH COLLATERAL THAT THE ADMINISTRATIVE AGENT
DETERMINES TO BE FREE AND CLEAR OF ANY SUCH