Common use of Liability of Bank Clause in Contracts

Liability of Bank. (a) As between the Borrower and the Company and the Bank, the Borrower and the Company assume all risks of the acts or omissions of the Trustee with respect to the Trustee's use of the Letter of Credit. Neither the Bank nor any of its officers or directors shall be liable or responsible for: (1) the use which may be made of the Letter of Credit or for any acts or omissions of the Trustee in connection therewith; (2) the form, validity, sufficiency, accuracy or genuineness of any documents (including without limitation any documents presented under the Letter of Credit), or of any statement therein or endorsement thereon, even if any such documents, statements or endorsements should in fact prove to be in any or all respects invalid, insufficient, fraudulent, forged, inaccurate or untrue; (3) the payment by the Bank against presentation of documents which do not comply with the terms of the Letter of Credit, including failure of any documents to bear any reference or adequate reference to the Letter of Credit, or any other failure by the Trustee to comply fully with conditions required in order to effect a drawing under the Letter of Credit; (4) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign the Letter of Credit or the rights or benefit thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (5) errors, omissions, interruptions, losses or delays in transmission or delivery of any messages by mail, cable, telegraph, telex, telephone or otherwise; (6) any loss or delay in the transmission or otherwise of any document or draft required in order to make a drawing under the Letter of Credit; or (7) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit; except only that the Borrower or the Company shall have a claim against the Bank, and the Bank shall be liable to the Borrower and the Company, to the extent, but only to the extent, of any direct, as opposed to consequential, damages suffered by the Borrower or the Company which the Borrower or the Company proves were caused solely by (i) the Bank's gross negligence or willful misconduct or (ii) the Bank's willful failure to pay under the Letter of Credit after the presentation to it by the Trustee of a draft and certificate strictly complying with the terms and conditions of the Letter of Credit, unless the Bank in good faith believes that it is prohibited by law or other legal authority from making such payment. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary; provided that if the Bank shall receive written notification from both the Trustee and either the Borrower or the Company that documents conforming to the terms of the Letter of Credit to be presented to the Bank are not to be honored, the Bank agrees that it will not honor such documents.

Liability of Bank. (a) As between the Borrower and the Company and the Bank, the Borrower and the Company assume assumes all risks of the acts or omissions of the Trustee with respect to the Trustee's use of the Letter of Credit. Neither the Bank nor any of its officers or directors shall be liable or responsible for: (1) the use which may be made of the Letter of Credit or for any acts or omissions of the Trustee in connection therewith; (2) except as set forth in subsection 2.06(a)(3) hereof, the form, validity, sufficiency, accuracy or genuineness of any documents (including without limitation any documents presented under the Letter of Credit), or of any statement therein or endorsement thereon, even if any such documents, statements or endorsements should in fact prove to be in any or all respects invalid, insufficient, fraudulent, forged, inaccurate or untrue; (3) the payment by the Bank against presentation of documents which do not comply with the terms of the Letter of Credit unless the documents on their face appear not to comply with the terms of the Letter of Credit, including failure of any documents to bear any reference or adequate reference to the Letter of Credit, or any other failure by the Trustee to comply fully with conditions required in order to effect a drawing under the Letter of Credit; (4) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign the Letter of Credit or the rights or benefit thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reasonreason unless the documents on their face appear not to comply with the terms of the Letter of Credit; (5) errors, omissions, interruptions, losses or delays in transmission or delivery of any messages by mail, cable, telegraph, telex, telephone or otherwise; (6) any loss or delay in the transmission or otherwise of any document or draft required in order to make a drawing under the Letter of Credit; or (7) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit; except only that the Borrower or the Company shall have a claim against the Bank, and the Bank shall be liable to the Borrower and the CompanyBorrower, to the extent, but only to the extent, of any direct, as opposed to consequential, damages suffered by the Borrower or the Company which the Borrower or the Company proves were caused solely by (i) the Bank's gross negligence or willful misconduct misconduct, (ii) or Bank's failure to observe general banking practices or (iiiii) the Bank's willful failure to pay under the Letter of Credit after the presentation to it by the Trustee of a draft and certificate strictly complying with the terms and conditions of the Letter of Credit, unless the Bank in good faith believes that it is prohibited by law or other legal authority from making such payment. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary; provided that if the Bank shall receive written notification from both the Trustee and either the Borrower or the Company that documents conforming to the terms of the Letter of Credit to be presented to the Bank are not to be honored, the Bank agrees that it will not honor such documents.

Liability of Bank. (a) As between the Borrower and the Company and the Bank, the Borrower and the Company assume assumes all risks of the acts or omissions of the Trustee beneficiary with respect to the Trusteebeneficiary's use of the a Letter of Credit. Neither the Bank nor any of its officers or directors shall be liable or responsible for: (1) the use which may be made by or on behalf of the beneficiary of a Letter of Credit or for any acts or omissions of by the Trustee beneficiary in connection therewith; (2) the form, validity, sufficiency, accuracy or genuineness of any documents (including without limitation any documents presented under the a Letter of Credit), or of any statement therein or endorsement thereon, even if any such documents, statements or endorsements should in fact prove to be in any or all respects invalid, insufficient, fraudulent, forged, inaccurate or untrue; (3) the payment by the Bank against presentation of documents which do not comply with the terms of the a Letter of Credit, including failure of any documents to bear any reference or adequate reference to the a Letter of Credit, or any other failure by or on behalf of the Trustee beneficiary to comply fully with conditions required in order to effect a drawing under the a Letter of Credit; (4) the validity or sufficiency of any instrument delivered by or on behalf of the beneficiary or any other Person (other than the Bank) transferring or assigning or purporting to transfer or assign the a Letter of Credit or the rights or benefit benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (5) errors, omissions, interruptions, losses or delays in transmission or delivery of any messages by mail, cable, telegraph, telex, telephone or otherwise; (6) any loss or delay in the transmission or otherwise of any document or draft required in order to make a drawing under the a Letter of Credit; or (7) any other circumstances whatsoever in making or failing to make payment under the a Letter of Credit; except only that the Borrower or the Company shall have a claim against the Bank, and the Bank shall be liable to the Borrower and the Company, to the extent, but only to the extent, of any direct, as opposed to consequentialspecial, exemplary, consequential or punitive, damages suffered by the Borrower or the Company which the Borrower or the Company proves were caused solely by (i) the Bank's gross negligence or willful misconduct or gross negligence of the Bank in determining whether a Draft presented under a Letter of Credit complied with the terms of the Letter of Credit, (ii) the payment by the Bank under a Letter of Credit presented by the beneficiary for payment after the Stated Expiration Date of the Letter of Credit (except to the extent the Stated Expiration Date is deemed extended under the International Standby Practices (ISP98)), or (iii) the Bank's willful failure or gross negligence in failing to pay under the a Letter of Credit after the presentation to it by or on behalf of the Trustee beneficiary of a draft and certificate Draft strictly complying with the terms and conditions of the Letter of Credit, unless the Bank in good faith believes that it is prohibited by law or other legal authority from making such payment. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary; provided that if the Bank shall receive written notification from both the Trustee and either the Borrower or the Company that documents conforming to the terms of the Letter of Credit to be presented to the Bank are not to be honored, the Bank agrees that it will not honor such documents.

Liability of Bank. (a) As between the Borrower and the Company and the Bank, the Borrower and the Company assume assumes all risks of the acts or omissions of the Trustee with respect to the Trustee's use of the Letter of Credit. Neither the Bank nor any of its officers officers, directors, employees, or directors agents shall be liable or responsible for: (1) the use which may be made of the Letter of Credit or for any acts act or omissions of the Trustee in connection therewithwith the Letter of Credit; (2) the form, validity, sufficiency, accuracy or genuineness of any documents (including without limitation any documents presented under the Letter of Credit), or of any statement therein in or endorsement thereonon such documents, even if any such documents, statements or endorsements should in fact prove to be in any or all respects invalid, insufficient, fraudulent, forged, inaccurate inaccurate, or untrue; (3) the payment by the Bank against presentation of documents which do not comply with the terms of the Letter of Credit, including failure of any documents to bear any reference or adequate reference to the Letter of Credit, or any other failure by the Trustee to comply fully with conditions required in order to effect a drawing under the Letter of Credit; (4) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign the Letter of Credit or the rights or benefit thereunder under or proceeds thereofof the Letter of Credit, in whole or in part, which may prove to be invalid or ineffective for any reason; (5) errors, omissions, interruptions, losses or delays in transmission or delivery of any messages by mail, cable, telegraph, telex, telephone or otherwise; (6) any loss or delay in the transmission or otherwise of any document or draft required in order to make a drawing under the Letter of Credit; or (7) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit; except only that the Borrower or the Company shall have a claim against the Bank, and the Bank shall be liable to the Borrower and the CompanyBorrower, to the extent, but only to the extent, of any direct, as opposed to consequential, damages suffered by the Borrower or the Company which the Borrower or the Company proves were caused solely by (i) the Bank's willful misconduct or gross negligence or willful misconduct of the Bank or (ii) the Bank's wrongful and willful failure by the Bank to pay under the Letter of Credit after the presentation to it by the Trustee of a draft and certificate strictly complying with the terms and conditions of the Letter of Credit, unless the Bank in good faith believes that it is prohibited by law or other legal authority from making such payment. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary; provided provided, however, that if the Bank shall should receive written notification from both the Trustee and either the Borrower or the Company that documents conforming to the terms of the Letter of Credit to be presented to the Bank are not to be honored, the Bank agrees that it will not honor such documents.

Liability of Bank. (a) As between the Borrower and the Company and the Bank, the Borrower and the Company assume assumes all risks of the acts or omissions of the Trustee Beneficiary with respect to the Trustee's Beneficiary’s use of the Letter of Credit. Neither the Bank nor any of its officers or directors shall be liable or responsible for: (1) the use which may be made of the Letter of Credit or for any acts or omissions of the Trustee Beneficiary in connection therewith; (2) the form, validity, sufficiency, accuracy or genuineness of any documents (including without limitation any documents presented under the Letter of Credit), or of any statement therein or endorsement thereon, even if any such documents, statements or endorsements should in fact prove to be in any or all respects invalid, insufficient, fraudulent, forged, inaccurate or untrue; (3) the payment by the Bank against presentation of documents which do not comply with the terms of the Letter of Credit, including failure of any documents to bear any reference or adequate reference to the Letter of Credit, or any other failure by the Trustee Beneficiary to comply fully with conditions required in order to effect a drawing under the Letter of Credit; (4) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign the Letter of Credit or the rights or benefit thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (5) errors, omissions, interruptions, losses or delays in transmission or delivery of any messages by mail, cable, telegraph, telex, telephone or otherwise; (6) any loss or delay in the transmission or otherwise of any document or draft required in order to make a drawing under the Letter of Credit; or (7) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit; except only that the Borrower or the Company shall have a claim against the Bank, and the Bank shall be liable to the Borrower and the CompanyBorrower, to the extent, but only to the extent, of any direct, as opposed to consequential, damages suffered by the Borrower or the Company which the Borrower or the Company proves were caused solely by (i) the Bank's ’s gross negligence or willful misconduct in determining whether documents presented under the Letter of Credit complied with the terms of the Letter of credit or (ii) the Bank's ’s willful failure to pay under the Letter of Credit after the presentation to it by the Trustee Beneficiary of a draft and certificate strictly complying with the terms and conditions of the Letter of Credit, unless the Bank in good faith believes that it is prohibited by law or other legal authority from making such payment. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary; provided that if the Bank shall receive written notification from both the Trustee Beneficiary and either the Borrower or the Company that documents conforming to the terms of the Letter of Credit to be presented to the Bank are not to be honored, the Bank agrees that it will not honor such documents.

Liability of Bank. (a) As between the Borrower and the Company and the Bank, the Borrower and the Company assume assumes all risks of the acts or omissions of the Trustee with respect to the Trustee's use of the Letter of Credit. Neither the Bank nor any of its officers or directors shall be liable or responsible for: (1) the use which may be made of the Letter of Credit or for any acts or omissions of the Trustee in connection therewith; (2) the form, validity, sufficiency, accuracy or genuineness of any documents (including without limitation any documents presented under the Letter of Credit), or of any statement therein or endorsement thereon, even if any such documents, statements or endorsements should in fact prove to be in any or all respects invalid, insufficient, fraudulent, forged, inaccurate or untrue; (3) the payment by the Bank to the Trustee against presentation of documents which do not comply with the terms of the Letter of Credit, including failure of any documents to bear any reference or adequate reference to the Letter of Credit, or any other failure by the Trustee to comply fully with conditions required in order to effect a drawing under the Letter of Credit; (4) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign the Letter of Credit or the rights or benefit thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (5) errors, omissions, interruptions, losses or delays in transmission or delivery of any drafts or any messages by mail, cable, telegraph, telex, telephone telephone, electronic media or otherwise; (6) any loss or delay in the transmission or otherwise of any document or draft required in order to make a drawing under the Letter of Credit; or (7) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit; except only that the Borrower or the Company shall have a claim against the Bank, and the Bank shall be liable to the Borrower and the Company, to the extent, but only to the extent, of any direct, as opposed to consequential, damages suffered by the Borrower or the Company which the Borrower or the Company proves were caused solely by (i) the Bank's willful misconduct or gross negligence or willful misconduct or (ii) the Bank's willful failure to pay under the Letter of Credit after the presentation to it by the Trustee of a draft and certificate strictly complying with the terms and conditions of the Letter of Credit, unless the Bank in good faith believes that it is prohibited by law or other legal authority from making such payment. The Bank shall have no obligation to contest any such prohibition. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary; provided that if the Bank shall receive written notification from both the Trustee and either the Borrower or the Company that documents conforming to the terms of the Letter of Credit to be presented to the Bank are not to be honored, the Bank agrees that it will not honor such documents.

Liability of Bank. (a) As between the Borrower and the Company and the Bank, the Borrower and the Company assume assumes all risks of the acts or omissions of the Trustee with respect to the Trustee's use of the Letter of Credit. Neither the Bank nor any of its officers officers, directors, employees, or directors agents shall be liable or responsible for: (1) the use which may be made of the Letter of Credit or for any acts act or omissions of the Trustee in connection therewithwith the Letter of Credit; (2) the form, validity, sufficiency, accuracy or genuineness of any documents (including without limitation any documents presented under the Letter of Credit), or of any statement therein in or endorsement thereonon such documents, even if any such documents, statements or endorsements should in fact prove to be in any or all respects invalid, insufficient, fraudulent, forged, inaccurate inaccurate, or untrue; (3) the payment by the Bank against presentation of documents which do not comply with the terms of the Letter of Credit, including failure of any documents to bear any reference or adequate reference to the Letter of Credit, or any other failure by the Trustee to comply fully with conditions required in order to effect a drawing under the Letter of Credit; (4) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign the Letter of Credit or the rights or benefit thereunder under or proceeds thereofof the Letter of Credit, in whole or in part, which may prove to be invalid or ineffective for any reason; (5) errors, omissions, interruptions, losses or delays in transmission or delivery of any messages by mail, cable, telegraph, telex, telephone or otherwise; (6) any loss or delay in the transmission or otherwise of any document or draft required in order to make a drawing under the Letter of Credit; or (7) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit; except only that the Borrower or the Company shall have a claim against the Bank, and the Bank shall be liable to the Borrower and the CompanyBorrower, to the extent, but only to the extent, of any direct, as opposed to consequential, damages suffered by the Borrower or the Company which the Borrower or the Company proves were caused solely by (i) the Bank's willful misconduct or gross negligence or willful misconduct of the Bank or (ii) the Bank's wrongful and willful failure by the Bank to pay under the Letter of Credit after the presentation to it by the Trustee of a draft and certificate strictly complying with the terms and conditions of the Letter of Credit, unless the Bank in good faith believes that it is prohibited by law or other legal authority from making such payment. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary; provided provided, however that if the Bank shall should receive written notification from both the Trustee and either the Borrower or the Company that documents conforming to the terms of the Letter of Credit to be presented to the Bank are not to be honored, the Bank agrees that it will not honor such documents.

Liability of Bank. (a) As between the Borrower and the Company City and the Bank, the Borrower and the Company assume City assumes all risks of the acts or omissions of the Trustee Fiscal Agent with respect to the Trustee's Fiscal Agent’s use of the Letter of Credit. Neither the Bank nor any of its officers or directors shall be liable or responsible for: (1) the use which may be made of the Letter of Credit or for any acts or omissions of the Trustee Fiscal Agent in connection therewith; (2) the form, validity, sufficiency, accuracy or genuineness of any documents (including without limitation any documents presented under the Letter of Credit), or of any statement therein or endorsement thereon, even if any such documents, statements or endorsements should in fact prove to be in any or all respects invalid, insufficient, fraudulent, forged, inaccurate or untrue; (3) the payment by the Bank against presentation of documents which do not comply with the terms of the Letter of Credit, including failure of any documents to bear any reference or adequate reference to the Letter of Credit, or any other failure by the Trustee Fiscal Agent to comply fully with conditions required in order to effect a drawing under the Letter of Credit; (4) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign the Letter of Credit or the rights or benefit thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (5) errors, omissions, interruptions, losses or delays in transmission or delivery of any messages by mail, cable, telegraph, telex, telephone or otherwise; (6) any loss or delay in the transmission or otherwise of any document or draft required in order to make a drawing under the Letter of Credit; or (7) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit; except only that the Borrower or the Company City shall have a claim against the Bank, and the Bank shall be liable to the Borrower and the CompanyCity, to the extent, but only to the extent, of any direct, as opposed to consequential, damages suffered by the Borrower or the Company City which the Borrower or the Company City proves were caused solely by (i) the Bank's ’s willful misconduct or gross negligence or willful misconduct or (ii) the Bank's ’s willful failure to pay under the Letter of Credit after the presentation to it by the Trustee Fiscal Agent of a draft and certificate strictly complying with the terms and conditions of the Letter of Credit, unless the Bank in good faith and without gross negligence, believes that it is prohibited by law or other legal authority from making such payment. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary; provided that if the Bank shall receive written notification from both the Trustee and either the Borrower or the Company that documents conforming to the terms of the Letter of Credit to be presented to the Bank are not to be honored, the Bank agrees that it will not honor such documents.

Liability of Bank. (a) As between the Borrower and the Company and the Bank, the Borrower and the Company assume all risks of the acts or omissions of the Trustee with respect to the Trustee's use of the Letter of Credit. Neither the Bank nor any of its their officers or directors shall be liable or responsible for: for (1a) the use which may be made of the Letter of Credit or for any acts acts, omissions, errors, interruptions, delays in transmission, dispatch or omissions delivery of any message or advice, however transmitted, of the Trustee Bank in connection therewith; (2) the form, validity, sufficiency, accuracy or genuineness of any documents (including without limitation any documents presented under with the Letter of Credit); (b) any action, inaction or omission which may be taken by the Bank in connection with the Letter of Credit; (c) the validity, sufficiency or genuineness of documents, or of any statement therein or endorsement endorsements thereon, even if any such documents, statements or endorsements documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent, fraudulent or forged, inaccurate or untrue; (3d) the payment by the Bank against presentation of documents which do not comply with the terms of the Letter of Credit, including failure of any documents to bear any reference or adequate reference to the Letter of Credit, or any other failure by the Trustee to comply fully with conditions required in order to effect a drawing under the Letter of Credit; (4) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign the Letter of Credit or the rights or benefit thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (5) errors, omissions, interruptions, losses or delays in transmission or delivery of any messages by mail, cable, telegraph, telex, telephone or otherwise; (6) any loss or delay in the transmission or otherwise of any document or draft required in order to make a drawing under the Letter of Credit; or (7e) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit; , except only that the Borrower or the Company shall have a claim against the BankBank for acts or events described in the immediately preceding clauses (a) through (d), and the Bank shall be liable to the Borrower and the Company, to the extent, but only to the extent, of any direct, as opposed to consequential, damages suffered by the Borrower or the Company it which the Borrower or the Company proves were caused solely by (i) the Bank's willful misconduct or gross negligence or willful misconduct in determining whether documents presented under the Letter of Credit comply with the terms of the Letter of Credit or (ii) the Bank's willful failure or gross negligence in failing to pay under the Letter of Credit after the presentation to it by the Trustee Escrow Agent of a draft and certificate strictly complying with the terms and conditions of the Letter of Credit, unless . The Company further agrees that any action taken or omitted by the Bank under or in good faith believes that it is prohibited by law connection with the Letter of Credit or other legal authority from making such paymentthe related draft or documents, if done without gross negligence, shall be effective against the Company as to the rights, duties and obligations of the Bank and shall not place the Bank under any liability to the Company. In furtherance and not in limitation of the foregoing, the Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary; provided that if the Bank shall receive written notification from both the Trustee and either the Borrower or the Company and the Escrow Agent that documents sufficiently conforming to (in the terms opinion of the Letter of Credit to be Bank) documents presented to the Bank are not to be honored, the Bank agrees that it they will not honor such documents; provided, further, however, that the Company hereby acknowledges that such dishonor by the Bank shall constitute a circumstance that the Bank may seek indemnification for under Section 7.4. The foregoing is not intended to limit the liability of the Bank under the Letter of Credit.