TO CONSEQUENTIAL
DAMAGES, CLAIMS IN RESPECT OF WHICH ARE HEREBY WAIVED BY THE BORROWER TO THE
EXTENT PERMITTED BY APPLICABLE LAW) SUFFERED BY THE BORROWER THAT ARE CAUSED BY
SUCH LC ISSUER'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 AN LC ISSUER (AS FINALLY
DETERMINED BY A COURT OF COMPETENT JURISDICTION), SUCH LC ISSUER 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 THAT APPEAR ON THEIR FACE TO BE IN
SUBSTANTIAL COMPLIANCE WITH THE TERMS OF A LETTER OF CREDIT, AN LC ISSUER 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 RESPECTIVE LC
ISSUER SHALL, PROMPTLY FOLLOWING ITS RECEIPT THEREOF, EXAMINE ALL DOCUMENTS
PURPORTING TO REPRESENT A DEMAND FOR PAYMENT UNDER A LETTER OF CREDIT.
SUCH LC
ISSUER SHALL PROMPTLY NOTIFY THE ADMINISTRATIVE
38
Agent and the Borrower by telephone (confirmed by telecopy) of such demand for
payment and whether such LC Issuer has made or will make an LC Disbursement
thereunder, provided that any failure to give or delay in giving such notice
shall not relieve the Borrower of its obligation to reimburse such LC Issuer and
the Revolving Lenders with respect to any such LC Disbursement (other than with
respect to the timing of such reimbursement obligation as set forth in paragraph
(e) of this Section).
(H)
INTERIM INTEREST.
IF THE RESPECTIVE LC
ISSUER SHALL MAKE ANY LC DISBURSEMENT, THEN, UNLESS THE BORROWER SHALL REIMBURSE
SUCH LC DISBURSEMENT IN FULL 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 BORROWER
REIMBURSES SUCH LC DISBURSEMENT, AT THE RATE PER ANNUM THEN APPLICABLE TO
REVOLVING LOANS, PROVIDED THAT, IF THE BORROWER FAILS TO REIMBURSE SUCH LC
DISBURSEMENT WHEN DUE PURSUANT TO PARAGRAPH (E) OF THIS SECTION, THEN SECTION
2.13(C) SHALL APPLY.
INTEREST ACCRUED PURSUANT TO THIS PARAGRAPH SHALL BE FOR
THE ACCOUNT OF SUCH LC ISSUER, EXCEPT THAT INTEREST ACCRUED ON AND AFTER THE
DATE OF PAYMENT BY ANY REVOLVING LENDER PURSUANT TO PARAGRAPH (E) OF THIS
SECTION TO REIMBURSE SUCH LC ISSUER SHALL BE FOR THE ACCOUNT OF SUCH LENDER TO
THE EXTENT OF SUCH PAYMENT.
(I)
REPLACEMENT OF AN LC ISSUER.
ANY LC
ISSUER MAY BE REPLACED AND ADDITIONAL LC ISSUERS MAY BE ADDED AT ANY TIME BY
WRITTEN AGREEMENT AMONG THE BORROWER, THE ADMINISTRATIVE