CIRCUMSTANCE WHATSOEVER, WHETHER OR NOT SIMILAR TO ANY OF THE FOREGOING, THAT
MIGHT, BUT FOR THE PROVISIONS OF THIS SECTION 2.18,
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CONSTITUTE A LEGAL OR EQUITABLE DISCHARGE OF, OR PROVIDE A RIGHT OF SETOFF
AGAINST, THE OBLIGATIONS OF US BORROWERS AND CANADIAN BORROWER, AS APPLICABLE,
HEREUNDER; (V) THE FACT THAT A DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING; OR
(VI) ANY MATERIAL ADVERSE CHANGE IN THE BUSINESS, PROPERTY, RESULTS OF
OPERATIONS, PROSPECTS OR CONDITION, FINANCIAL OR OTHERWISE, OF US BORROWERS AND
ITS SUBSIDIARIES.
NONE OF THE AGENTS, THE LENDERS, THE ISSUING BANK OR ANY OF
THEIR AFFILIATES SHALL HAVE ANY LIABILITY OR RESPONSIBILITY BY REASON OF OR IN
CONNECTION WITH THE ISSUANCE OR TRANSFER OF ANY LETTER OF CREDIT OR ANY LC
ACCEPTANCE 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 BANK; PROVIDED THAT THE FOREGOING SHALL
NOT BE CONSTRUED TO EXCUSE THE ISSUING BANK FROM LIABILITY TO US BORROWERS OR
CANADIAN BORROWER, AS APPLICABLE, TO THE EXTENT OF ANY DIRECT DAMAGES (AS
OPPOSED TO CONSEQUENTIAL DAMAGES, CLAIMS IN RESPECT OF WHICH ARE HEREBY WAIVED
BY BORROWERS TO THE EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW) SUFFERED
BY US BORROWERS OR CANADIAN BORROWER, AS APPLICABLE, 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 WILLFUL 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.
(G)
DISBURSEMENT PROCEDURES.
THE ISSUING BANK SHALL, PROMPTLY
FOLLOWING ITS RECEIPT THEREOF, EXAMINE ALL DOCUMENTS PURPORTING TO REPRESENT A
DEMAND FOR PAYMENT (OR CREATION OF AN LC ACCEPTANCE) UNDER A LETTER OF CREDIT.
THE ISSUING BANK SHALL PROMPTLY GIVE WRITTEN NOTICE TO THE US ADMINISTRATIVE
AGENT AND US BORROWERS OF SUCH DEMAND FOR PAYMENT AND WHETHER THE ISSUING BANK
HAS MADE OR WILL MAKE AN LC