OF TECHNICAL TERMS OR ANY CONSEQUENCE ARISING FROM
CAUSES BEYOND THE CONTROL OF ANY ISSUING BANK; PROVIDED THAT THE FOREGOING SHALL
NOT BE CONSTRUED TO EXCUSE THE APPLICABLE ISSUING BANK FROM LIABILITY TO THE
BORROWER TO THE EXTENT OF ANY DIRECT DAMAGES (AS OPPOSED TO CONSEQUENTIAL OR
PUNITIVE 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 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 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 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.
33
(G)
DISBURSEMENT PROCEDURES.
AN ISSUING BANK
SHALL, PROMPTLY FOLLOWING ITS RECEIPT THEREOF, EXAMINE ALL DOCUMENTS PURPORTING
TO REPRESENT A DEMAND FOR PAYMENT UNDER A LETTER OF CREDIT.
THE APPLICABLE
ISSUING BANK SHALL PROMPTLY NOTIFY THE ADMINISTRATIVE AGENT AND THE BORROWER BY
TELEPHONE (CONFIRMED BY TELECOPY) 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
BORROWER OF ITS OBLIGATION TO REIMBURSE THE APPLICABLE ISSUING BANK AND THE
REVOLVING LENDERS WITH RESPECT TO ANY SUCH LC DISBURSEMENT IN ACCORDANCE WITH
SECTION 2.05(E).
(H)
INTERIM INTEREST.
IF AN ISSUING BANK SHALL
MAKE ANY LC DISBURSEMENT, THEN, UNLESS THE BORROWER 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 BORROWER REIMBURSES SUCH
LC DISBURSEMENT, AT THE RATE PER ANNUM THEN APPLICABLE TO ABR REVOLVING LOANS;
PROVIDED THAT, IF THE BORROWER FAILS 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