AND SHALL BE PERFORMED STRICTLY IN ACCORDANCE
WITH THE TERMS OF THIS AGREEMENT UNDER ANY AND ALL CIRCUMSTANCES WHATSOEVER AND
IRRESPECTIVE OF (I) ANY LACK OF VALIDITY OR ENFORCEABILITY OF ANY LETTER OF
CREDIT OR THIS AGREEMENT, OR ANY TERM OR PROVISION THEREIN, (II) ANY DRAFT OR
OTHER DOCUMENT PRESENTED UNDER A LETTER OF CREDIT PROVING TO BE FORGED,
FRAUDULENT OR INVALID IN ANY RESPECT OR ANY STATEMENT THEREIN BEING UNTRUE OR
INACCURATE IN ANY RESPECT, (III) PAYMENT BY AN ISSUING BANK UNDER A LETTER OF
CREDIT AGAINST PRESENTATION OF A DRAFT OR OTHER DOCUMENT THAT DOES NOT COMPLY
WITH THE TERMS OF SUCH LETTER OF CREDIT, OR (IV) ANY OTHER EVENT OR CIRCUMSTANCE
WHATSOEVER, WHETHER OR NOT SIMILAR TO ANY OF THE FOREGOING, THAT MIGHT, BUT FOR
THE PROVISIONS OF THIS SECTION, CONSTITUTE A LEGAL OR EQUITABLE DISCHARGE OF, OR
PROVIDE A RIGHT OF SETOFF AGAINST, A BORROWER'S OBLIGATIONS HEREUNDER. NONE OF
THE ADMINISTRATIVE AGENT, THE LENDERS OR THE ISSUING BANKS, OR ANY OF THEIR
RELATED PARTIES, SHALL HAVE ANY LIABILITY OR RESPONSIBILITY BY REASON OF OR IN
CONNECTION WITH THE ISSUANCE OR TRANSFER OF ANY LETTER OF CREDIT OR ANY PAYMENT
OR FAILURE TO MAKE ANY PAYMENT THEREUNDER (IRRESPECTIVE OF ANY OF THE
CIRCUMSTANCES REFERRED TO IN THE PRECEDING SENTENCE), OR ANY ERROR, OMISSION,
INTERRUPTION, LOSS OR DELAY IN TRANSMISSION OR DELIVERY OF ANY DRAFT, NOTICE OR
OTHER COMMUNICATION UNDER OR RELATING TO ANY LETTER OF CREDIT (INCLUDING ANY
DOCUMENT REQUIRED TO MAKE A DRAWING THEREUNDER), ANY ERROR IN INTERPRETATION OF
TECHNICAL TERMS OR ANY CONSEQUENCE
52
ARISING FROM CAUSES BEYOND THE CONTROL OF AN ISSUING BANK; PROVIDED THAT THE
FOREGOING SHALL NOT BE CONSTRUED TO EXCUSE AN ISSUING BANK FROM LIABILITY TO THE
APPLICABLE BORROWER TO THE EXTENT OF ANY DIRECT DAMAGES (AS OPPOSED TO
CONSEQUENTIAL DAMAGES, CLAIMS IN RESPECT OF WHICH ARE HEREBY WAIVED BY EACH
BORROWER TO THE EXTENT PERMITTED BY APPLICABLE LAW) SUFFERED BY A BORROWER THAT
ARE CAUSED BY AN 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 AN ISSUING BANK (AS
FINALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION), SUCH 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, AN
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 APPLICABLE ISSUING BANK SHALL, PROMPTLY