BANK AS THEIR INTERESTS MAY APPEAR.
ANY PAYMENT MADE BY A LENDER PURSUANT TO THIS PARAGRAPH TO REIMBURSE THE ISSUING
BANK FOR AN LC DISBURSEMENT (OTHER THAN THE FUNDING OF AN ABR BORROWING OR A
SWINGLINE LOAN AS CONTEMPLATED ABOVE) SHALL NOT CONSTITUTE A LOAN AND SHALL NOT
RELIEVE THE BORROWER OF ITS OBLIGATION TO REIMBURSE SUCH LC DISBURSEMENT.
(G)
OBLIGATIONS ABSOLUTE.
THE BORROWER'S OBLIGATION TO REIMBURSE LC
DISBURSEMENTS AS PROVIDED IN PARAGRAPH (F) OF THIS SECTION IS 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
38
VALIDITY OR ENFORCEABILITY OF ANY LETTER OF CREDIT OR THIS AGREEMENT, OR ANY
TERM OR PROVISION THEREOF OR HEREOF, (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 AN ISSUING BANK 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
PARAGRAPH, CONSTITUTE A LEGAL OR EQUITABLE DISCHARGE OF, OR PROVIDE A RIGHT OF
SETOFF AGAINST, THE BORROWER'S OBLIGATIONS HEREUNDER.
NONE OF THE
ADMINISTRATIVE AGENT, THE LENDERS, THE ISSUING BANKS OR 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, ANY PAYMENT OR FAILURE TO
MAKE ANY PAYMENT THEREUNDER (IRRESPECTIVE OF ANY OF THE CIRCUMSTANCES REFERRED
TO IN THE PRECEDING SENTENCE), 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 OTHER
ACT, FAILURE TO ACT OR OTHER EVENT OR CIRCUMSTANCE; PROVIDED THAT THE FOREGOING
SHALL NOT BE CONSTRUED TO EXCUSE ANY ISSUING BANK FROM LIABILITY TO THE BORROWER
TO THE EXTENT OF ANY DIRECT DAMAGES (AS OPPOSED TO CONSEQUENTIAL DAMAGES, CLAIMS
IN RESPECT OF WHICH ARE HEREBY WAIVED BY THE BORROWER) SUFFERED BY THE BORROWER
THAT ARE CAUSED BY SUCH 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 AN ISSUING BANK (AS
DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND NONAPPEALABLE
JUDGMENT), SUCH 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
THAT APPEAR ON THEIR FACE TO