ServiceMagic 2012 Annual Report Download - page 308

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 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; provided that, subject to the penultimate sentence of this
clause (f), reimbursement obligations of the Borrower with respect to a Letter of Credit may be subject to avoidance by 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 to the extent permitted by applicable law) suffered by the Borrower or any Restricted Subsidiary that are caused by
the 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. Neither the Administrative Agent, the Revolving Lenders nor the Issuing Bank, nor 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 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 the Issuing Bank; provided that
the foregoing shall not be construed to excuse the 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 to the extent permitted by
applicable law) suffered by the Borrower that are caused by the 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, bad faith 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 to be in substantial compliance with the terms of a Letter of Credit, the 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 Issuing Bank shall, promptly following its receipt thereof, examine all
documents purporting to represent a demand for payment under a Letter of Credit. The Issuing Bank shall promptly notify the
Administrative Agent and the Borrower by telephone (confirmed by telecopy) of such demand for payment and whether the Issuing
Bank has made or will make an LC Disbursement thereunder; provided that any delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse the Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement.
(h) Interim Interest . If the Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall
reimburse such LC Disbursement in full on the date set forth in paragraph (e) of this Section 2.17, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is required to be reimbursed to but excluding the date
that the Borrower reimburses such LC Disbursement, at the rate per annum set forth in Section 2.10(c)(ii). Interest accrued pursuant
to this paragraph shall be for the account of the 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 the Issuing Bank shall be for the account of such
Revolving Lender to the extent of such payment.
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