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 BORROWERS THAT ARE DETERMINED BY A COURT OF COMPETENT
JURISDICTION TO HAVE BEEN CAUSED BY SUCH ISSUING BANK'S FAILURE TO EXERCISE CARE
WHEN DETERMINING WHETHER DRAFTS AND OTHER DOCUMENTS PRESENTED UNDER A LETTER OF
CREDIT OR BANKERS' ACCEPTANCE 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 APPLICABLE ISSUING BANK, SUCH ISSUING BANK SHALL BE DEEMED TO
HAVE EXERCISED CARE IN EACH SUCH DETERMINATION.
IN FURTHERANCE OF THE
72
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 OR BANKERS'
ACCEPTANCE, THE APPLICABLE 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.
(G)
DISBURSEMENT PROCEDURES.
THE APPLICABLE ISSUING BANK SHALL,
PROMPTLY FOLLOWING ITS RECEIPT THEREOF, EXAMINE ALL DOCUMENTS PURPORTING TO
REPRESENT A DEMAND FOR PAYMENT OR CREATION OF A BANKERS' ACCEPTANCE UNDER A
LETTER OF CREDIT OR ANY PRESENTATION FOR PAYMENT OF A BANKERS' ACCEPTANCE.
SUCH
ISSUING BANK SHALL PROMPTLY NOTIFY THE ADMINISTRATIVE AGENT AND THE APPLICABLE
BORROWER BY TELEPHONE (CONFIRMED BY TELECOPY) OF ANY SUCH DEMAND FOR PAYMENT OR
BANKERS' ACCEPTANCE AND WHETHER SUCH ISSUING BANK HAS MADE OR WILL MAKE A L/C -
BA DISBURSEMENT THEREUNDER; PROVIDED, THAT ANY FAILURE TO GIVE OR DELAY IN
GIVING SUCH NOTICE SHALL NOT RELIEVE THE BORROWERS OF THEIR OBLIGATION TO
REIMBURSE SUCH ISSUING BANK AND THE REVOLVING LENDERS WITH RESPECT TO ANY SUCH
L/C - BA DISBURSEMENT.
(H)
INTERIM INTEREST.
IF AN ISSUING BANK SHALL MAKE ANY L/C - BA
DISBURSEMENT, THEN, UNLESS THE BORROWERS SHALL REIMBURSE SUCH L/C - BA
DISBURSEMENT IN FULL ON THE DATE SUCH L/C - BA DISBURSEMENT IS MADE, THE UNPAID
AMOUNT THEREOF SHALL BEAR INTEREST, FOR EACH DAY FROM AND INCLUDING THE DATE
SUCH L/C - BA DISBURSEMENT IS MADE TO BUT EXCLUDING THE DATE THAT THE BORROWERS
REIMBURSE SUCH L/C - BA DISBURSEMENT, AT THE RATE PER ANNUM THEN APPLICABLE TO
ABR REVOLVING LOANS; PROVIDED, THAT, IF SUCH L/C - BA DISBURSEMENT IS NOT
REIMBURSED BY THE BORROWERS 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 THE APPLICABLE ISSUING BANK, 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 ISSUING BANK SHALL
BE FOR THE ACCOUNT OF SUCH REVOLVING LENDER TO THE EXTENT OF SUCH PAYMENT.
(I)
REPLACEMENT OF AN ISSUING BANK.
AN ISSUING BANK MAY BE
REPLACED AT ANY TIME BY WRITTEN AGREEMENT AMONG