OTHER
PERSON, INCLUDING ANY DEFENSE BASED ON THE FAILURE OF ANY DRAFT OR OTHER
DOCUMENT PRESENTED UNDER A LETTER OF CREDIT TO COMPLY WITH THE TERMS OF SUCH
LETTER OF CREDIT; PROVIDED, THAT THE BORROWER SHALL NOT BE OBLIGATED TO
REIMBURSE THE ISSUING BANK FOR ANY WRONGFUL PAYMENT MADE BY THE ISSUING BANK AS
A RESULT OF THE ISSUING BANK'S GROSS NEGLIGENCE, BAD FAITH, WILLFUL MISCONDUCT
OR BREACH OF ITS OBLIGATIONS IN DETERMINING WHETHER DRAFTS AND OTHER DOCUMENTS
PRESENTED UNDER A LETTER OF CREDIT COMPLY WITH THE TERMS THEREOF.
(II)
EACH LENDER AND THE BORROWER AGREE THAT, IN PAYING ANY DRAWING
UNDER A LETTER OF CREDIT, THE RELEVANT ISSUING BANK SHALL NOT HAVE ANY
RESPONSIBILITY TO OBTAIN ANY DOCUMENT (OTHER THAN ANY DRAFT, DEMAND, CERTIFICATE
OR OTHER DOCUMENT EXPRESSLY REQUIRED BY THE LETTER OF CREDIT) OR TO ASCERTAIN OR
INQUIRE AS TO THE VALIDITY OR ACCURACY OF ANY SUCH DOCUMENT OR THE AUTHORITY OF
THE PERSON EXECUTING OR DELIVERING ANY SUCH DOCUMENT.
NONE OF THE ISSUING
BANKS, THE AGENTS NOR ANY OF THE RESPECTIVE CORRESPONDENTS, PARTICIPANTS OR
ASSIGNEES OF ANY ISSUING BANK SHALL BE LIABLE TO ANY LENDER FOR (X) ANY ACTION
TAKEN OR OMITTED IN CONNECTION HEREWITH AT THE REQUEST OR WITH THE APPROVAL OF
THE LENDERS OR THE REQUIRED LENDERS, AS APPLICABLE, (Y) ANY ACTION TAKEN OR
OMITTED IN THE ABSENCE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR (Z) THE DUE
EXECUTION, EFFECTIVENESS, VALIDITY OR ENFORCEABILITY OF ANY DOCUMENT OR
INSTRUMENT RELATED TO ANY LETTER OF CREDIT OR LETTER OF CREDIT REQUEST.
THE
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 EITHER BORROWER FROM
PURSUING SUCH RIGHTS AND REMEDIES AS IT MAY HAVE AGAINST THE BENEFICIARY OR
TRANSFEREE AT LAW OR UNDER ANY OTHER AGREEMENT; PROVIDED FURTHER THAT THE
FOREGOING SHALL NOT BE CONSTRUED TO EXCUSE SUCH ISSUING BANK FROM LIABILITY TO
THE BORROWER 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 BORROWER THAT ARE CAUSED BY
SUCH ISSUING BANK'S FAILURE TO EXERCISE THE STANDARD OF CARE SET FORTH ABOVE
WHEN DETERMINING WHETHER DRAFTS AND OTHER DOCUMENTS PRESENTED UNDER A LETTER OF
CREDIT COMPLY WITH THE TERMS THEREOF.
85
(G)
THE RELEVANT ISSUING BANK SHALL, PROMPTLY
FOLLOWING ITS RECEIPT THEREOF, EXAMINE ALL DOCUMENTS PURPORTING TO REPRESENT A
DEMAND FOR PAYMENT UNDER A LETTER OF CREDIT.
THE RELEVANT ISSUING BANK SHALL AS
PROMPTLY AS POSSIBLE GIVE TELEPHONIC NOTIFICATION, CONFIRMED BY FAX, TO THE
ADMINISTRATIVE AGENT AND THE BORROWER OF SUCH DEMAND FOR PAYMENT AND WHETHER
SUCH ISSUING BANK HAS MADE OR WILL MAKE AN L/C DISBURSEMENT THEREUNDER; PROVIDED
THAT ANY FAILURE TO GIVE OR DELAY IN GIVING SUCH NOTICE SHALL NOT RELIEVE THE
BORROWER OF ITS OBLIGATIONS TO REIMBURSE SUCH ISSUING BANK AND THE