A SWINGLINE LOAN AS CONTEMPLATED ABOVE) SHALL NOT
CONSTITUTE A LOAN AND SHALL NOT RELIEVE THE US BORROWER OF ITS OBLIGATION TO
REIMBURSE SUCH LC DISBURSEMENT.
(F)
OBLIGATIONS ABSOLUTE. THE US BORROWER'S OBLIGATION TO REIMBURSE
LC DISBURSEMENTS AS PROVIDED IN PARAGRAPH (E) OF THIS SECTION SHALL BE ABSOLUTE,
UNCONDITIONAL AND IRREVOCABLE, 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 THE ISSUING LENDER 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, THE US BORROWER'S OBLIGATIONS HEREUNDER.
NEITHER THE ADMINISTRATIVE AGENT, THE LENDERS NOR THE ISSUING LENDER, NOR 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 ARISING FROM CAUSES BEYOND THE CONTROL OF THE
ISSUING LENDER; PROVIDED THAT THE FOREGOING SHALL NOT BE CONSTRUED TO EXCUSE THE
ISSUING LENDER FROM LIABILITY TO THE US BORROWER TO THE EXTENT OF ANY DIRECT
DAMAGES (AS OPPOSED TO CONSEQUENTIAL DAMAGES, CLAIMS IN RESPECT OF WHICH ARE
HEREBY WAIVED BY THE US BORROWER TO THE EXTENT PERMITTED BY APPLICABLE LAW)
SUFFERED BY THE US BORROWER THAT ARE CAUSED BY THE ISSUING LENDER'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 WILLFUL MISCONDUCT
ON THE PART OF THE ISSUING LENDER (AS FINALLY DETERMINED BY A COURT OF COMPETENT
JURISDICTION), THE ISSUING LENDER 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 LENDER MAY, IN ITS SOLE DISCRETION, EITHER ACCEPT
AND MAKE PAYMENT UPON