PURSUING
SUCH RIGHTS AND REMEDIES AS ANY OF THEM MAY HAVE AGAINST THE BENEFICIARY OR
TRANSFEREE AT LAW OR UNDER ANY OTHER AGREEMENT.
NO 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 2.3(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
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.
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
31
SUCH DRAWING HAS RESULTED IN AN L/C BORROWING, 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, OR (III) IF AN EVENT OF DEFAULT HAS
OCCURRED AND IS CONTINUING THE BORROWERS SHALL IMMEDIATELY CASH COLLATERALIZE
THE THEN OUTSTANDING AMOUNT OF ALL L/C OBLIGATIONS (IN AN AMOUNT EQUAL TO THE
DOLLAR EQUIVALENT OF SUCH OUTSTANDING AMOUNT DETERMINED AS OF THE DATE OF SUCH
L/C BORROWING OR THE LETTER OF CREDIT 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.
(H)
APPLICABILITY OF ISP98 AND UCP.
UNLESS OTHERWISE EXPRESSLY AGREED
BY THE L/C ISSUER AND THE COMPANY WHEN A LETTER OF CREDIT IS ISSUED (INCLUDING
ANY SUCH AGREEMENT APPLICABLE TO AN EXISTING LETTER OF CREDIT), (I) THE RULES OF
THE "INTERNATIONAL STANDBY PRACTICES 1998" PUBLISHED BY THE INSTITUTE OF
INTERNATIONAL BANKING LAW & PRACTICE (OR SUCH LATER VERSION THEREOF AS MAY BE IN
EFFECT AT THE TIME OF ISSUANCE) SHALL APPLY TO EACH STANDBY LETTER OF CREDIT,
AND (II) THE RULES OF