CLAIMS IN
RESPECT OF WHICH ARE HEREBY WAIVED BY EACH BORROWER TO THE EXTENT PERMITTED BY
APPLICABLE LAW) SUFFERED BY ANY 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 WILLFUL
MISCONDUCT ON THE PART OF APPLICABLE 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
49
APPLICABLE 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 APPLICABLE ISSUING BANK SHALL,
PROMPTLY FOLLOWING ITS RECEIPT THEREOF, EXAMINE ALL DOCUMENTS PURPORTING TO
REPRESENT A DEMAND FOR PAYMENT UNDER A LETTER OF CREDIT.
SUCH ISSUING BANK
SHALL PROMPTLY NOTIFY THE AGENT AND THE BORROWER AGENT BY TELEPHONE (CONFIRMED
BY FACSIMILE) OF SUCH DEMAND FOR PAYMENT AND WHETHER SUCH ISSUING BANK HAS MADE
OR WILL MAKE AN LC DISBURSEMENT THEREUNDER; PROVIDED THAT ANY FAILURE TO GIVE OR
DELAY IN GIVING SUCH NOTICE SHALL NOT RELIEVE THE BORROWERS OF THEIR OBLIGATION
TO REIMBURSE SUCH ISSUING BANK AND THE REVOLVING LENDERS WITH RESPECT TO ANY
SUCH LC DISBURSEMENT.
(H)
INTERIM INTEREST.
IF AN ISSUING BANK SHALL MAKE ANY LC
DISBURSEMENT, THEN, UNLESS THE BORROWERS SHALL REIMBURSE SUCH LC DISBURSEMENT IN
FULL ON THE DATE SUCH LC DISBURSEMENT IS MADE, THE UNPAID AMOUNT THEREOF SHALL
BEAR INTEREST, FOR EACH DAY FROM AND INCLUDING THE DATE SUCH LC DISBURSEMENT IS
MADE TO BUT EXCLUDING THE DATE THAT THE BORROWERS REIMBURSE SUCH LC
DISBURSEMENT, AT THE RATE PER ANNUM THEN APPLICABLE TO ABR REVOLVING LOANS;
PROVIDED THAT, IF THE BORROWERS FAIL TO REIMBURSE SUCH LC DISBURSEMENT WHEN DUE
PURSUANT TO PARAGRAPH (E) OF THIS SECTION, THEN SECTION 2.13(C) SHALL APPLY.
INTEREST ACCRUED PURSUANT TO THIS PARAGRAPH SHALL BE FOR THE ACCOUNT OF THE
APPLICABLE ISSUING BANK, EXCEPT THAT INTEREST ACCRUED ON AND AFTER THE DATE OF
PAYMENT BY ANY REVOLVING LENDER PURSUANT TO PARAGRAPH (E) OF THIS SECTION TO
REIMBURSE SUCH ISSUING BANK SHALL BE FOR THE ACCOUNT OF SUCH LENDER TO THE
EXTENT OF SUCH PAYMENT.
(I)
REPLACEMENT OF AN ISSUING BANK.
AN ISSUING BANK MAY BE REPLACED
WITH THE CONSENT OF THE AGENT (NOT TO BE UNREASONABLY WITHHELD OR DELAYED) AT
ANY TIME BY WRITTEN AGREEMENT AMONG THE BORROWER AGENT, THE AGENT, THE REPLACED
ISSUING BANK AND THE SUCCESSOR ISSUING BANK.
THE AGENT SHALL NOTIFY THE