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 SUCH
BORROWER THAT ARE CAUSED BY THE 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 WILFUL MISCONDUCT ON THE PART OF THE
ISSUING BANK (AS FINALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION), THE
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 WHICH APPEAR ON THEIR
FACE TO BE IN SUBSTANTIAL COMPLIANCE WITH THE TERMS OF A LETTER OF CREDIT, THE
ISSUING BANK MAY, IN ITS SOLE 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.
(G)
DISBURSEMENT PROCEDURES.
THE ISSUING BANK SHALL, PROMPTLY FOLLOWING ITS
RECEIPT THEREOF, EXAMINE ALL DOCUMENTS PURPORTING TO REPRESENT A DEMAND FOR
PAYMENT UNDER A LETTER OF CREDIT.
THE ISSUING BANK SHALL PROMPTLY NOTIFY THE
FACILITY AGENT AND THE APPLICABLE BORROWER BY TELEPHONE (CONFIRMED BY TELECOPY)
OF SUCH DEMAND FOR PAYMENT AND WHETHER THE ISSUING BANK HAS MADE OR WILL MAKE AN
LC DISBURSEMENT THEREUNDER; PROVIDED THAT ANY FAILURE TO GIVE OR DELAY IN GIVING
SUCH NOTICE SHALL NOT
41
RELIEVE THE APPLICABLE BORROWER OF ITS OBLIGATION TO REIMBURSE THE ISSUING BANK
AND THE LENDERS WITH RESPECT TO ANY SUCH LC DISBURSEMENT.
(H)
INTERIM INTEREST.
IF THE ISSUING BANK SHALL MAKE ANY LC DISBURSEMENT,
THEN, UNLESS THE APPLICABLE BORROWER SHALL REIMBURSE SUCH LC DISBURSEMENT IN
FULL, BY 12:00 NOON, NEW YORK CITY TIME, ON THE DATE SUCH LC DISBURSEMENT IS
MADE, THE UNPAID AMOUNT THEREOF SHALL BEAR INTEREST, FOR EACH DAY FROM AND
INCLUDING THE DATE SUCH LC DISBURSEMENT IS MADE TO BUT EXCLUDING THE DATE THAT
THE APPLICABLE BORROWER REIMBURSES SUCH LC DISBURSEMENT, AT (I) IN THE CASE OF A
US TRANCHE LETTER OF CREDIT, THE RATE PER ANNUM THEN APPLICABLE TO ABR REVOLVING
LOANS AND (II) IN THE CASE OF A SPANISH TRANCHE LETTER OF CREDIT, A RATE PER
ANNUM REASONABLY DETERMINED BY THE APPLICABLE ISSUING BANK (WHICH DETERMINATION
WILL BE CONCLUSIVE ABSENT MANIFEST ERROR) TO BE ITS COST OF FUNDS PLUS THE
APPLICABLE RATE USED TO DETERMINE INTEREST APPLICABLE TO LIBOR LOANS; PROVIDED
THAT, IF THE APPLICABLE BORROWER FAILS TO REIMBURSE SUCH LC DISBURSEMENT WHEN
DUE PURSUANT TO PARAGRAPH (E) OF THIS SECTION, THEN SECTION 2.12(D) SHALL
APPLY.
INTEREST ACCRUED PURSUANT TO THIS PARAGRAPH SHALL BE FOR THE ACCOUNT OF
THE ISSUING BANK, EXCEPT THAT INTEREST ACCRUED ON AND AFTER THE DATE OF PAYMENT
BY ANY LENDER PURSUANT