BANKING INDUSTRY RULES OR PRACTICES
ON INTERBANK COMPENSATION.
(F)
OBLIGATIONS ABSOLUTE.
THE CAYMAN REIMBURSEMENT OBLIGATION OF THE
CAYMAN BORROWER AS PROVIDED IN SECTION 2.18(A)(E) SHALL BE ABSOLUTE,
UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID AND PERFORMED STRICTLY IN
ACCORDANCE WITH THE TERMS OF THIS AGREEMENT UNDER ANY AND ALL CIRCUMSTANCES
WHATSOEVER AND IRRESPECTIVE OF (I) ANY LACK OF VALIDITY OR ENFORCEABILITY OF ANY
LETTER OF CREDIT OR THIS AGREEMENT, OR ANY TERM OR PROVISION THEREIN; (II) ANY
DRAFT OR OTHER DOCUMENT PRESENTED UNDER A LETTER OF CREDIT BEING PROVED TO BE
FORGED, FRAUDULENT, INVALID OR INSUFFICIENT IN ANY RESPECT OR ANY STATEMENT
THEREIN BEING UNTRUE OR INACCURATE IN ANY RESPECT; (III) PAYMENT BY THE ISSUING
BANK UNDER A LETTER OF CREDIT AGAINST PRESENTATION OF A DRAFT OR OTHER DOCUMENT
THAT FAILS TO COMPLY WITH THE TERMS OF SUCH CAYMAN LETTER OF CREDIT; (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 2.18(A),
CONSTITUTE A LEGAL OR EQUITABLE DISCHARGE OF, OR PROVIDE A RIGHT OF SETOFF
AGAINST, THE OBLIGATIONS OF THE CAYMAN BORROWER 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 THE CAYMAN BORROWER 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 CAYMAN 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 CAYMAN 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 THE CAYMAN BORROWER TO THE EXTENT OF ANY DIRECT DAMAGES (AS OPPOSED
TO CONSEQUENTIAL DAMAGES, CLAIMS IN RESPECT OF WHICH ARE HEREBY WAIVED BY THE
CAYMAN BORROWER TO THE EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW)
SUFFERED BY THE CAYMAN BORROWER THAT ARE CAUSED BY THE ISSUING BANK'S FAILURE TO
EXERCISE CARE WHEN DETERMINING WHETHER DRAFTS AND OTHER DOCUMENTS PRESENTED
UNDER A CAYMAN 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