(INCLUDING ANY DOCUMENT REQUIRED TO MAKE A
DRAWING THEREUNDER), ANY REASONABLE ERROR IN INTERPRETATION OF TECHNICAL TERMS
OR ANY CONSEQUENCE ARISING FROM CAUSES BEYOND THE CONTROL OF THE ISSUING BANK,
PROVIDED THAT THE FOREGOING SHALL NOT BE CONSTRUED TO EXCUSE THE ISSUING BANK
FROM LIABILITY TO THE APPLICABLE BORROWER OR SUBSIDIARY TO THE EXTENT OF ANY
DIRECT DAMAGES (AS OPPOSED TO
55
CONSEQUENTIAL DAMAGES, CLAIMS IN RESPECT OF WHICH ARE HEREBY WAIVED BY SUCH
BORROWER OR SUBSIDIARY TO THE EXTENT PERMITTED BY APPLICABLE LAW) SUFFERED BY
THE SUCH BORROWER OR SUBSIDIARY THAT ARE CAUSED BY THE 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 THE ISSUING BANK (AS FINALLY DETERMINED BY A COURT OF COMPETENT
JURISDICTION), THE 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, THE 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, AND ANY SUCH
ACCEPTANCE OR REFUSAL SHALL BE DEEMED NOT TO CONSTITUTE GROSS NEGLIGENCE OR
WILFUL MISCONDUCT.
(G)
DISBURSEMENT PROCEDURES.
THE ISSUING BANK SHALL, PROMPTLY FOLLOWING ITS
RECEIPT THEREOF, EXAMINE ALL DOCUMENTS PURPORTING TO REPRESENT A DEMAND FOR
PAYMENT UNDER A LETTER OF CREDIT.
THE ISSUING BANK SHALL PROMPTLY NOTIFY THE
ADMINISTRATIVE AGENT AND THE APPLICABLE BORROWER OR SUBSIDIARY BY TELEPHONE
(CONFIRMED BY FACSIMILE) OF SUCH DEMAND FOR PAYMENT AND WHETHER THE 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 SUCH BORROWER OR
SUBSIDIARY OF ITS OBLIGATION TO REIMBURSE THE ISSUING BANK AND THE REVOLVING
LENDERS WITH RESPECT TO ANY SUCH L/C DISBURSEMENT IN ACCORDANCE WITH
SECTION 2.05(E).
(H)
INTERIM INTEREST.
IF THE ISSUING BANK SHALL MAKE ANY L/C DISBURSEMENT,
THEN, UNLESS THE APPLICABLE BORROWER OR SUBSIDIARY SHALL REIMBURSE SUCH L/C
DISBURSEMENT IN FULL ON THE DATE SUCH L/C DISBURSEMENT IS MADE, THE UNPAID
AMOUNT THEREOF SHALL BEAR INTEREST, FOR EACH DAY FROM AND INCLUDING THE DATE
SUCH L/C DISBURSEMENT IS MADE TO BUT EXCLUDING THE DATE THAT SUCH BORROWER OR
SUBSIDIARY REIMBURSES SUCH L/C DISBURSEMENT, AT THE RATE PER ANNUM THEN
APPLICABLE TO (I) ABR REVOLVING LOANS, IN THE CASE OF LETTERS OF CREDIT ISSUED
FOR THE ACCOUNT OF THE PARENT BORROWER OR ANY DOMESTIC SUBSIDIARY, OR
(II) CANADIAN BASE RATE REVOLVING LOANS, IN THE CASE OF LETTERS OF CREDIT ISSUED