ANY STATEMENT THEREIN BEING UNTRUE OR
INACCURATE IN ANY RESPECT; (IV) ANY OTHER CIRCUMSTANCE OR HAPPENING WHATSOEVER,
WHETHER OR NOT SIMILAR TO ANY OF THE FOREGOING, THAT MIGHT, BUT FOR THE
PROVISIONS OF THIS SECTION, CONSTITUTE A LEGAL OR EQUITABLE DISCHARGE OF, OR
PROVIDE A RIGHT OF SETOFF AGAINST, THE BORROWERS' OBLIGATIONS HEREUNDER; OR
(V) THE FACT THAT ANY EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING.
NONE OF THE ADMINISTRATIVE AGENT, THE LENDERS, THE ISSUING BANKS OR ANY OF THEIR
AFFILIATES SHALL HAVE ANY LIABILITY OR RESPONSIBILITY BY REASON OF OR IN
CONNECTION WITH THE ISSUANCE OR TRANSFER OF ANY LETTER OF CREDIT OR ANY PAYMENT
OR FAILURE TO MAKE ANY PAYMENT THEREUNDER (IRRESPECTIVE OF ANY OF THE
CIRCUMSTANCES REFERRED TO IN THE PRECEDING SENTENCE), OR ANY ERROR, OMISSION,
INTERRUPTION, LOSS OR DELAY IN TRANSMISSION OR DELIVERY OF ANY DRAFT, NOTICE OR
OTHER COMMUNICATION UNDER OR RELATING TO ANY LETTER OF CREDIT (INCLUDING ANY
DOCUMENT REQUIRED TO MAKE A DRAWING THEREUNDER), ANY ERROR IN INTERPRETATION OF
TECHNICAL TERMS OR ANY CONSEQUENCE ARISING FROM CAUSES BEYOND THE CONTROL OF AN
ISSUING BANK, PROVIDED, THAT THE FOREGOING SHALL NOT BE CONSTRUED TO EXCUSE ANY
ISSUING BANK FROM LIABILITY TO THE BORROWERS TO THE EXTENT OF ANY DIRECT DAMAGES
(AS OPPOSED TO CONSEQUENTIAL DAMAGES, CLAIMS IN RESPECT OF WHICH ARE HEREBY
WAIVED BY THE BORROWERS TO THE EXTENT PERMITTED BY APPLICABLE LAW) SUFFERED BY
THE BORROWERS THAT ARE CAUSED BY AN ISSUING BANK'S FAILURE TO EXERCISE CARE WHEN
DETERMINING WHETHER DRAFTS AND OTHER DOCUMENTS PRESENTED UNDER A LETTER OF
CREDIT COMPLY WITH THE TERMS THEREOF.
THE PARTIES HERETO EXPRESSLY AGREE THAT,
IN THE ABSENCE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF AN
ISSUING BANK (AS FINALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION), SUCH
ISSUING BANK SHALL BE DEEMED TO HAVE EXERCISED CARE IN EACH SUCH DETERMINATION.
IN FURTHERANCE OF THE FOREGOING AND WITHOUT LIMITING THE GENERALITY THEREOF, THE
PARTIES AGREE THAT, WITH RESPECT TO DOCUMENTS PRESENTED THAT APPEAR ON THEIR
FACE TO BE IN COMPLIANCE WITH THE TERMS OF A LETTER OF CREDIT, AN ISSUING BANK
MAY, IN ITS REASONABLE DISCRETION, EITHER ACCEPT AND MAKE PAYMENT UPON SUCH
DOCUMENTS WITHOUT RESPONSIBILITY FOR FURTHER INVESTIGATION, REGARDLESS OF ANY
NOTICE OR INFORMATION TO THE CONTRARY, OR REFUSE TO ACCEPT AND MAKE PAYMENT UPON
SUCH DOCUMENTS IF SUCH DOCUMENTS ARE NOT IN STRICT COMPLIANCE WITH THE TERMS OF
SUCH LETTER OF CREDIT.
42
(J)
IF ANY EVENT OF DEFAULT SHALL OCCUR AND
BE CONTINUING, ON THE BUSINESS DAY THAT THE BORROWERS RECEIVE NOTICE FROM THE
ADMINISTRATIVE AGENT OR THE REQUIRED LENDERS DEMANDING THE DEPOSIT OF CASH
COLLATERAL PURSUANT TO THIS PARAGRAPH, THE BORROWERS SHALL DEPOSIT IN THE CASH
COLLATERAL ACCOUNT AN AMOUNT IN CASH EQUAL TO 103% OF THE LETTER OF CREDIT
OUTSTANDINGS AS OF SUCH DATE PLUS ANY ACCRUED AND UNPAID INTEREST THEREON.
EACH
SUCH DEPOSIT SHALL BE HELD BY THE COLLATERAL AGENT AS COLLATERAL FOR THE PAYMENT
AND PERFORMANCE OF THE OBLIGATIONS OF THE BORROWERS UNDER THIS