OR PROVISION THEREIN OR HEREIN,
(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 THE APPLICABLE 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 SECTION, CONSTITUTE A
LEGAL OR EQUITABLE DISCHARGE OF, OR PROVIDE A RIGHT OF SETOFF AGAINST, THE
BORROWER'S OBLIGATIONS HEREUNDER.
NEITHER ANY CREDIT PARTY NOR ANY OF THEIR
RESPECTIVE RELATED PARTIES SHALL HAVE ANY LIABILITY OR RESPONSIBILITY BY REASON
OF OR IN CONNECTION WITH THE ISSUANCE OR TRANSFER OF ANY LETTER OF CREDIT 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
SUCH ISSUING BANK; PROVIDED THAT THE FOREGOING SHALL NOT BE CONSTRUED TO EXCUSE
ANY ISSUING BANK FROM LIABILITY TO THE BORROWER
44
TO THE EXTENT OF ANY DIRECT DAMAGES (AS OPPOSED 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 ISSUING BANK'S
FAILURE TO EXERCISE CARE WHEN DETERMINING WHETHER DRAFTS AND OTHER DOCUMENTS
PRESENTED UNDER A LETTER OF CREDIT ISSUED BY IT COMPLY WITH THE TERMS THEREOF,
OR IN PAYING UNDER ANY LETTER OF CREDIT AFTER THE PRESENTATION TO IT BY THE
BENEFICIARY OF A SIGHT DRAFT AND CERTIFICATE(S) STRICTLY COMPLYING WITH THE
TERMS AND CONDITIONS OF SUCH LETTER OF CREDIT.
THE PARTIES HERETO EXPRESSLY
AGREE THAT, IN THE ABSENCE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART
OF ANY ISSUING BANK (AS FINALLY DETERMINED BY A COURT OF COMPETENT
JURISDICTION), 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
WHICH APPEAR ON THEIR FACE TO BE IN SUBSTANTIAL COMPLIANCE WITH THE TERMS OF A
LETTER OF CREDIT, THE ISSUING BANK THEREOF 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.
EACH ISSUING BANK
SHALL, PROMPTLY FOLLOWING ITS RECEIPT THEREOF, EXAMINE ALL DOCUMENTS