BORROWER HEREBY ASSUMES ALL
RISKS OF THE ACTS OR OMISSIONS OF ANY BENEFICIARY OR TRANSFEREE WITH RESPECT TO
ITS USE OF ANY LETTER OF CREDIT; PROVIDED THAT THIS ASSUMPTION IS NOT INTENDED
TO, AND SHALL NOT, PRECLUDE THE BORROWER'S PURSUING SUCH RIGHTS AND REMEDIES AS
IT MAY HAVE AGAINST THE BENEFICIARY OR TRANSFEREE AT LAW OR UNDER ANY OTHER
AGREEMENT. NONE OF THE LETTER OF CREDIT ISSUER, THE ADMINISTRATIVE AGENT, ANY OF
THEIR RESPECTIVE AFFILIATES NOR ANY CORRESPONDENT, PARTICIPANT OR ASSIGNEE OF
THE LETTER OF CREDIT ISSUER SHALL BE LIABLE OR RESPONSIBLE FOR ANY OF THE
MATTERS DESCRIBED IN SECTION 3.3(E); PROVIDED THAT
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ANYTHING IN SUCH SECTION TO THE CONTRARY NOTWITHSTANDING, THE BORROWER MAY HAVE
A CLAIM AGAINST THE LETTER OF CREDIT ISSUER, AND THE LETTER OF CREDIT ISSUER MAY
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 WHICH
THE BORROWER PROVES WERE CAUSED BY THE LETTER OF CREDIT ISSUER'S WILLFUL
MISCONDUCT OR GROSS NEGLIGENCE OR THE LETTER OF CREDIT 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 LETTER OF CREDIT 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 LETTER OF
CREDIT 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.
3.8.
CASH COLLATERAL.
(A)
UPON THE REQUEST OF THE REQUIRED REVOLVING CREDIT LENDERS IF, AS
OF THE L/C MATURITY DATE, THERE ARE ANY LETTERS OF CREDIT OUTSTANDING, THE
BORROWER SHALL IMMEDIATELY CASH COLLATERALIZE THE THEN LETTERS OF CREDIT
OUTSTANDING.
(B)
THE ADMINISTRATIVE AGENT ACTING IN ITS REASONABLE DISCRETION, MAY,
AT ANY TIME AND FROM TIME TO TIME AFTER THE INITIAL DEPOSIT OF CASH COLLATERAL,
REQUEST THAT ADDITIONAL CASH COLLATERAL BE PROVIDED IN THE EVENT SUCH CASH
COLLATERAL PREVIOUSLY PROVIDED IS INADEQUATE AS A RESULT OF EXCHANGE RATE
FLUCTUATIONS.
(C)
IF ANY EVENT OF DEFAULT SHALL OCCUR AND BE CONTINUING, THE
ADMINISTRATIVE AGENT OR THE REVOLVING CREDIT LENDERS WITH LETTER OF CREDIT
EXPOSURE REPRESENTING GREATER THAN 50% OF THE TOTAL LETTER OF CREDIT EXPOSURE
MAY REQUIRE THAT THE L/C OBLIGATIONS BE CASH COLLATERALIZED.
(D)
FOR PURPOSES OF THIS SECTION 3.8, "CASH COLLATERALIZE" MEANS TO
PLEDGE AND DEPOSIT WITH OR DELIVER TO THE ADMINISTRATIVE AGENT, FOR THE BENEFIT
OF THE LETTER OF CREDIT ISSUER AND THE LENDERS, AS COLLATERAL FOR THE L/C
OBLIGATIONS, CASH OR DEPOSIT ACCOUNT BALANCES IN THE CURRENCIES IN WHICH THE
LETTERS OF CREDIT OUTSTANDING ARE