CLAUSES TO THE
CONTRARY NOTWITHSTANDING, THE BORROWER SHALL HAVE A CLAIM AGAINST THE L/C
ISSUER, AND THE L/C ISSUER SHALL BE LIABLE TO THE BORROWER, TO THE EXTENT, BUT
ONLY TO THE EXTENT, OF ANY DIRECT, AS OPPOSED TO CONSEQUENTIAL OR EXEMPLARY,
DAMAGES SUFFERED BY THE BORROWER THAT ARE DETERMINED BY A COURT OF COMPETENT
JURISDICTION TO HAVE BEEN 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.
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, THAT 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 A L/C BORROWING, OR (II) IF,
AS OF THE L/C EXPIRATION DATE, ANY LETTER OF CREDIT MAY FOR ANY REASON REMAIN
OUTSTANDING AND PARTIALLY OR WHOLLY UNDRAWN THE BORROWER SHALL IMMEDIATELY CASH
COLLATERALIZE THE THEN OUTSTANDING AMOUNT OF ALL L/C OBLIGATIONS (IN AN AMOUNT
EQUAL TO SUCH OUTSTANDING AMOUNT DETERMINED AS OF THE DATE OF SUCH L/C BORROWING
OR THE L/C EXPIRATION DATE, AS THE CASE MAY BE).
THE ADMINISTRATIVE AGENT MAY,
AT ANY TIME AND FROM TIME TO TIME AFTER THE INITIAL DEPOSIT OF CASH COLLATERAL,
REQUEST THAT ADDITIONAL CASH COLLATERAL BE PROVIDED IN ORDER TO PROTECT AGAINST
THE RESULTS OF EXCHANGE RATE FLUCTUATIONS.
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 SUCH
L/C OBLIGATIONS, CASH OR DEPOSIT ACCOUNT BALANCES PURSUANT TO CUSTOMARY
DOCUMENTATION IN FORM AND SUBSTANCE
60
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 BLOCKED,
INTEREST BEARING DEPOSIT ACCOUNTS OR MONEY MARKET FUND ACCOUNTS AT THE
ADMINISTRATIVE AGENT.
(H)
APPLICABILITY OF ISP.
UNLESS OTHERWISE EXPRESSLY AGREED BY THE
L/C ISSUER AND THE BORROWER WHEN A LETTER OF CREDIT IS ISSUED (INCLUDING ANY
SUCH AGREEMENT APPLICABLE TO AN EXISTING LETTER OF CREDIT), THE RULES OF THE ISP
SHALL APPLY TO EACH LETTER OF CREDIT.
(I)
LETTERS OF CREDIT ISSUED FOR SUBSIDIARIES AND BCV.
NOTWITHSTANDING THAT A LETTER OF CREDIT ISSUED OR OUTSTANDING HEREUNDER IS IN
SUPPORT